Vieira v. GFL Environmental East Corporation, 2012 HRTO 310

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Vieira

Applicant

-and-

GFL Environmental East Corporation

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: February 13, 2012

Citation: 2012 HRTO 310

Indexed as: Vieira v. GFL Environmental East Corporation

1In this Application under s.34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended ("the Code"), the applicant alleges that the respondent, his former employer, discriminated against him on the basis of disability with respect to employment, and reprised against him contrary to the Code. In essence, the applicant alleges that the respondent failed to accommodate his disability during his employment; that he was harassed in the workplace; and that his disability was a factor in the respondent's decision to terminate his employment.

2Pursuant to a Case Assessment Direction dated November 30, 2011, the Tribunal directed that a preliminary hearing be held in respect of this matter to determine:

1. Whether the Application ought to be dismissed as an abuse of process on the basis that the applicant appears to have signed a Release releasing the respondent, among other things, "from any and all claims … including … all claims arising out of or in any way related to the employment of the [applicant] … including … all claims … arising under or in connection with … the Human Rights Code…"; and
2. Whether all or part of the Application should be dismissed on the basis that a proceeding under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c 16, Sch. A ("WSIA"), appropriately dealt with the substance of the Application within the meaning of s.45.1 of the Code. Specifically, the issue is whether the Workplace Safety and Insurance Board ("WSIB") appropriately dealt with all or part of the substance of the Application in a proceeding under the WSIA when it decided that the applicant's compensable injury or claim for benefits under the WSIA was not a factor in the respondent's decision to terminate the applicant's employment in April 2011.

3The preliminary hearing is scheduled to take place on February 14, 2012.

4This Interim Decision addresses the applicant's request that the preliminary hearing be adjourned. It also directs the parties to address an issue regarding whether the Release is binding on the applicant.

BACKGROUND

5By email dated February 9, 2012, the applicant requested that the February 14, 2012 preliminary hearing in this matter be adjourned to a later date. In his email, the applicant suggested that the Human Rights Legal Support Centre (HRLSC) was willing to represent him at the preliminary hearing in this matter if the Tribunal postponed the February 14, 2012 hearing to a later date, thereby allowing the HRLSC more time to prepare for the hearing.

6By Case Assessment Direction dated February 10, 2012, the Tribunal directed the applicant to make his best efforts to obtain and submit to the Tribunal a letter or email from the Human Rights Legal Support Centre confirming that it was in fact willing to represent the applicant at the preliminary hearing in this matter if the February 14, 2012 hearing date were adjourned. In its February 10, 2012 Case Assessment Direction, the Tribunal also directed the applicant to provide further details regarding when he first attempted to contact the Human Rights Legal Support Centre with respect to this matter.

7The applicant has failed to respond to the Tribunal's February 10, 2011 Case Assessment Direction.

8The respondent objects to the applicant's request that the February 14, 2012 hearing be adjourned. The respondent submits that the applicant has been aware that he could seek to have the Human Rights Legal Support Centre represent him in this matter since he filed his Application in April 2011. This assertion is based on the fact that the first page of the Tribunal's Application form, the same form completed by the applicant to initiate this proceeding, provides contact information for the Human Rights Legal Support Centre and advises applicants that they can contact the Human Rights Legal Support Centre for legal advice and assistance. The respondent submits that the only reason the applicant is asking for an adjournment at this time is because of his own failure to contact the Human Rights Legal Support Centre to seek legal representation in this matter "until recently". The respondent submits that this is not an "extraordinary circumstance" that warrants granting the applicant's request for an adjournment.

DECISION

Adjournment

9The Notice of Confirmation of Hearing in this matter, advising the parties that the preliminary hearing would take place on February 14, 2012, was mailed to the applicant on December 19, 2011, almost two months before the hearing.

10That Notice advised the parties that requests for adjournments would be dealt with in accordance with the Tribunal's "Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments", which states in relevant part:

Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

11Due to the applicant's failure to provide further information in support of his adjournment request, as directed, it is not at all clear that the Human Rights Legal Support Centre would represent the applicant at the preliminary hearing of this matter if an adjournment were granted. In addition, the applicant has failed to comply with the Tribunal's direction to provide further details regarding the timing of his attempts to retain the Human Rights Legal Support Centre to represent him in this matter. Such information is relevant because the Tribunal has often held that a party's failure to retain counsel in a timely manner does not constitute an extraordinary circumstance that warrants adjournment of the hearing, including when counsel is unavailable or unprepared to proceed on the scheduled date: Pazhaidam v. North York General Hospital, 2011 HRTO 1663; Davie v. PMA Brethour Real Estate, 2009 HRTO 1198; Wilson v. York (Regional Municipality), 2009 HRTO 2020; Schenk v. OSAD, 2010 HRTO 446; Vallentyne v. Royal Canadian Legion, 2009 HRTO 660.

12The applicant has not established that adjourning the hearing would make any difference as to whether or not he is represented at the preliminary hearing in this matter. In addition, and perhaps more importantly, the applicant has failed to establish that the request for an adjournment is due to extraordinary circumstances as opposed to his own failure to retain counsel to represent him in this matter in a timely way. The applicant has failed to establish that there are extraordinary circumstances which warrant the granting of his last-minute request for an adjournment. The applicant's request is therefore denied and the hearing will proceed as scheduled on February 14, 2012.

Whether Release is binding upon applicant

13The Tribunal has held that when two parties contract to settle legal matters between them, unless there are compelling reasons not to give effect to the contract or to set it aside altogether, the principle of finality demands that the contract be given effect and prevents parties from litigating settled matters: Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655. Thus, in determining whether it would be an abuse of process to permit the Application to proceed, the Tribunal is really determining whether there is a legally binding contract between the parties which, when given effect, prevents the applicant from pursuing a claim under the Code.

14In this case, the respondent has provided a copy of the Release the applicant appears to have signed in May 2011, as well as a copy of the April 26, 2011 letter which allegedly set out the "good and valuable consideration" which the applicant received in exchange for releasing the respondent from claims under the Code, among other things. According to the April 26, 2011 letter, upon termination of his employment, the applicant was paid a total of two weeks' pay "inclusive of any termination or severance pay to which he was entitled under either the Employment Standards Act of Ontario or the Canada Labour Code". According to the April 26, 2011 letter, one of the two weeks' pay paid to the applicant was conditional on him signing the Release. However, since the applicant appears to have been employed by the respondent from October 2009 until the termination of his employment in April 2011, it appears that the applicant may have been statutorily entitled to two weeks' pay upon the termination of his employment pursuant to the terms of the Employment Standards Act, 2000, S.O. 2000, c. 41 ("ESA"). If the applicant did not receive any consideration for the Release over and above his statutory entitlements to termination pay under the ESA, there is a question as to whether the Release is binding upon the applicant. In addition, if the respondent threatened to withhold monies to which the applicant was legally entitled unless he signed the Release, there is a question as to whether this vitiates the legal effect of the Release. (On this latter point, see Augustine v. Nadrofsky Corp., (1986), 17 O.A.C. 297 (Div. Ct.), cited in Perricone, supra, at paras. 54-55, where the Ontario Divisional Court found that the employer's insistence that a discharged employee sign a Release or go without pay to which the employee was statutorily entitled constituted sufficient coercion to vitiate the legal effect of the Release. See also: Dolter v. Media House Productions Inc., 2002 SKQB 228 and the cases cited therein.)

15To the extent that they are able to do so, the parties ought to be prepared to speak to this issue at the hearing on February 14, 2012. However, in recognition of the fact that this issue is being raised the day before the hearing, the Tribunal will also give the parties an opportunity to make further submissions on this issue following the February 14, 2012 hearing.

16A copy of the Tribunal's decision in Perricone v Fabco Plastics Wholesale and the decision in Dolter v. Media House Productions Inc., cited above, may be accessed, for free, at www.canlii.org.