Sooriyakumaran v. Delta Chelsea Hotel, 2012 HRTO 34

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anita Sooriyakumaran Applicant

-and-

Delta Chelsea Hotel Respondent

-and-

Unite Here Local 75 Intervenor

DECISION

Adjudicator: Mary Truemner Date: January 9, 2012 Citation: 2012 HRTO 34 Indexed as: Sooriyakumaran v. Delta Chelsea Hotel

APPEARANCES BY

Anita Sooriyakumaran, Applicant ) Self-represented Delta Chelsea Hotel, Respondent ) Donna D’Andrea, Counsel Unite Here Local 75, Intervenor ) Jorge Hurtado, Counsel

1This is an Application to the Tribunal filed on August 26, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in the area of employment on the basis of race and colour.

2The narrative attached to the Application describes the termination of the applicant’s job as a bus person in the respondent’s self-service restaurant. The narrative explains that the applicant took food reserved for customers. The narrative states that the applicant needed to help herself to the restaurant’s food, and eat it, in order to maintain a certain blood-sugar ratio to prevent dizziness. In its Response, the respondent disputes the facts as alleged by the applicant with respect to their arrangement about consuming food when needed for medical reasons. The Application does not, however, allege that the respondent’s termination of her employment for taking the food constitutes discrimination because of disability. The Application states:

Two employees of another race (colour) complained against me even though I was given permission [disputed by the respondent] to help myself when my glucose level drops to below normal… (permission by previous manager).

3The applicant’s union filed a grievance on her behalf on September 4, 2009, two days after her termination. The grievance’s description of the nature of the grievance merely states, “Unjust Termination”. A letter dated October 16, 2009 from the respondent to the union documents a second step grievance meeting with the applicant. In the letter, the respondent acknowledges that part of the grievance is an allegation that the applicant’s co-workers targeted her, but it states that “it is unclear how this suggested targeting relates to her unauthoirzed removal of product form Market Garden.” The grievance went to arbitration on July 13, 2010, when the parties reached a settlement, and entered into Minutes of Settlement which were signed by the applicant, her union’s representative and the respondent’s representative.

4The relevant paragraphs of the Minutes of Settlement state the following:

1. The Grievor shall be provided a lump sum payment in the amount of $5,000.00 as general damages. The Grievor alleged she has diabetes and required accommodation. The payment shall be made before August 1, 2010.

…

6. The payment in paragraph 1 is consideration for the release provided in this paragraph… The Grievor hereby releases the Employer… from any claim, cause of action, human rights application or demand of any kind related to her employment or the cessation of her employment.

Request to Dismiss Early

5The respondent requested that the Tribunal dismiss the Application under s.45.1 of the Code on the basis that a grievance proceeding has appropriately dealt with the subject matter of the Application, that the applicant had settled the grievance and released the respondent from any human rights application, and that it would be an abuse of process to allow the Application to proceed before the Tribunal. The applicant’s union, granted status to intervene on the request to dismiss the Application early, submits that the substance of the Application has been dealt with under the grievance arbitration procedure.

6A hearing of the respondent’s request was held by way of teleconference on October 27, 2011.

7At the hearing, the applicant confirmed that there were only two reasons for which she grieved the termination of her employment. Both were related to grounds under the Code. One was that the respondent did not accommodate her disability (diabetes). The other reason was that employer did not acknowledge that her co-workers’ reports about her sneaking food were made because of her race. I note that this second reason addressed in the grievance proceeding is the only reason cited in the Application to substantiate an allegation of discrimination.

8The applicant gave evidence that she could not remember well the day when she signed the Minutes of Settlement because, during the grievance negotiations, she was weakened by recent surgery. She testified, however, that she signed without reading the Minutes because she trusted the union representatives who were encouraging her to accept the respondent’s offer. The applicant testified that she did not read the Minutes before signing them, but she somehow thought that she could settle and subsequently fight for her human rights at the Tribunal. She admitted that she did not ask her union representatives if pursuing her human rights elsewhere would be possible after settling. Finally, she agreed that she accepted and received the $5,000 lump sum promised by the respondent in the Minutes of Settlement.

9While the applicant implied in her testimony that she had medical issues which hindered her ability to understand the Minutes of Settlement, she did not provide evidence that those medical issues rendered her incapable of understanding or appreciating the agreement she was entering into when she signed the Minutes. Instead, her evidence was that she did not read the Minutes before signing, and the reason for which she did not read the Minutes is that she trusted the advice of the union representatives who were encouraging her to sign after a full morning of discussion and after lunch. The applicant’s trust in and reliance upon the advice of the union representatives is not sufficient to void the Minutes, particularly when she admits that she did not seek their advice with respect to the effect the release might have on a subsequent application to the Tribunal. At any rate, the union itself was a party in the grievance proceeding. It was not the applicant’s legal representative. The Minutes of Settlement indicate that the applicant and the union are separate parties, and they were signed by a representative of the union and by the applicant. As the Tribunal explained in Rivard v. George Brown College, 2009 HRTO 2212, a party to a legal agreement cannot enter into a release without taking the time and effort to understand it, and then rely upon her own lack of attention as the basis upon which to resile the agreement.

10The respondent has requested early dismissal of the Application on the basis of s.45.1 of the Code and/or abuse of process. Section 45.1 of the Code provides as follows:

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.

Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”) provides as follows:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

11The 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 and released the respondent from a claim made to this Tribunal. See, for example, Dunn v. Sault Ste. Marie (City), 2008 HRTO 149; Sinnett v. Orlick Industries, 2009 HRTO 916; and Walker v. Dr. Michael Gossack Professional Corporation, 2011 HRTO 1982. In Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, the Tribunal discussed the principle of finality in considering the doctrine of abuse of process and held as follows:

The Tribunal has expressly distinguished the concepts of “abuse of process” and “bad faith”:

To call her endeavour an “abuse of process” is not to conclude that she has acted oppressively or abusively, or that she is driven by malice or bad faith. As I have indicated, abuse of process is a legal doctrine whose focus is the integrity and coherence of the adjudicative process. (Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 38. See also Hazel v. Ainsworth Engineered, 2009 HRTO 2180 at para. 47.)

The Supreme Court of Canada has emphasized that the abuse of process doctrine focuses less on the private interests of the parties, and more on the integrity of the adjudicative process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CUPE), as cited in Campbell, supra, at para. 38.

The applicability of the abuse of process doctrine in the Release context is readily apparent when one considers that one of the principles on which the doctrine is based is the principle of finality, described as “so crucial to the proper administration of justice.” (Donald J. Lange, The Doctrine of Res Judicata in Canada, Markham, Ontario: Butterworths, 2000, at 347-48, as cited in CUPE, supra, at para. 38). 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.

12While the Minutes of Settlement did not include a specific reference to the allegation of discrimination because of race and colour now at issue in the Application, the applicant agrees that the substance of the matter in the grievance proceeding included that allegation. Given that the applicant understood she was settling her grievance, that she understood the only issues in the grievance were allegations of discrimination contrary to the Code, and given the broad language of the release in the Minutes, I find that the applicant cannot rely on the omission of the naming of certain grounds to avoid the principle of finality and to void her agreement not to make “any claim, cause of action, human rights application or demand of any kind related to her employment or the cessation of her employment.” (Para. 6 of the Minutes of Settlement, my own emphasis added). On a straightforward reading of the Minutes, the applicant agreed to give up her rights to pursue any human rights application arising out of her employment or the termination of her employment. This includes the allegation she makes in her Application filed less than two months after she signed the Minutes.

13Having alleged discrimination in the context of the grievance proceeding, and having released the respondent from any human rights application related to her employment in a settlement of that grievance, the applicant may not continue with the Application. It would, in my view, constitute an abuse of the Tribunal’s process for her to do so, and the Application must be dismissed. Given my finding of an abuse of process, there is no need to decide whether s.45.1 of the Code applies.

14The Application is dismissed.