Samar Sleiman v. The Participation House Project (Durham Region), 2012 HRTO 345

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samar Sleiman

Applicant

-and-

The Participation House Project (Durham Region)

Respondent

-and-

Canadian Union of Public Employees and its Local 2936-1

Intervenor

A N D B E T W E E N:

The Participation House Project (Durham Region)

Applicant

-and-

Samar Sleiman and Canadian Union of Public Employees and its Local 2936-1

Respondents

DECISION

Adjudicator: Brian Eyolfson

Date: February 16, 2012

Citation: 2012 HRTO 345

Indexed as: Sleiman v. The Participation House Project (Durham Region)

APPEARANCES

Samar Sleiman, Applicant/Respondent ) Ali Sleiman, Representative

The Participation House Project ) Shane Smith, Counsel (Durham Region), Respondent/Applicant )

Canadian Union of Public Employees and ) Gavin Leeb, Counsel its Local 2936-I, Intervenor/Respondent )

INTRODUCTION

File Number 2009-03966-I

1The applicant, Samar Sleiman, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 4, 2009, alleging discrimination in employment on the basis of race, place of origin, ethnic origin and record of offences (the “s. 34 Application”). Ms. Sleiman named The Participation House Project (Durham Region) (the “PHP”) as a respondent in the s. 34 Application, and indicated that the facts of the s.34 Application were part of a union grievance proceeding that was still in progress.

2On February 18, 2010, the Canadian Union of Public Employees and its Local 2936-1 (the “union”) filed a Request to Intervene in the s. 34 Application.

3In its Response to the s. 34 Application, filed February 22, 2010, the PHP requested deferral of the s. 34 Application pending completion of the grievance proceeding.

4In email correspondence to the PHP, the union and the Tribunal, dated March 30, 2010, Ms. Sleiman indicated that she signed a settlement under “distress” and that she would like to proceed with her s. 34 Application with the Tribunal. Ms. Sleiman attached to her email a copy of “Minutes of Settlement and Release”, dated March 25, 2010, and signed by her.

5By letter to the Tribunal, dated April 6, 2010, and copied to Ms. Sleiman and the union, the PHP submitted that a settlement had been reached between the parties and the union, resolving the outstanding grievance referred to in the PHP’s Response, as well as Ms. Sleiman’s s. 34 Application with the Tribunal. The PHP took the position that there was no longer any need to defer, and that the matter had been fully and finally resolved and the s. 34 Application should be dismissed on that basis. In an email to the PHP, the union, and the Tribunal, dated April 8, 2010, Ms. Sleiman confirmed that she would like to continue with her s. 34 Application, indicating that she signed the settlement under stress.

6In an Interim Decision dated July 7, 2010, 2010 HRTO 1483, the Tribunal determined that a hearing would be scheduled to consider the following issues:

(i) whether the Application should be dismissed on the basis that the applicant signed a full and final release with respect to matters covered by the Application; and,

(ii) whether the Application should be dismissed, in whole or in part, because another proceeding has appropriately dealt with the substance of the Application.

7In the Interim Decision, the Tribunal also granted the union’s Request to Intervene and invited the union to participate in the hearing and make submissions on the above preliminary issues.

File Number 2010-05534-S

8On April 29, 2010, the PHP filed an Application for Contravention of Settlement, under section 45.9(3) of the Code, naming Ms. Sleiman and the union as respondents. By letter dated July 16, 2010, and copied to Ms. Sleiman and the union, the PHP advised the Tribunal that its Application for Contravention of Settlement concerned the same settlement at issue in Ms. Sleiman’s s. 34 Application. The PHP requested that its Application for Contravention of Settlement also be addressed at the hearing concerning the s. 34 Application that the Tribunal indicated would be scheduled in its earlier Interim Decision.

9In a Case Assessment Direction dated September 16, 2010, after seeking submissions from Ms. Sleiman and the union, the Tribunal determined that it was appropriate that the issues raised by the Application for Contravention of Settlement also be dealt with at the hearing to be scheduled pursuant to the Tribunal’s earlier Interim Decision.

ANALYSIS AND DECISION

The s. 34 Application

10Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, 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 in respect of the subject-matter of the application may constitute an abuse of the Tribunal’s process and, where that is the case, such applications should be dismissed. See, for example, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 (Perricone) and Barton v. Rouge Valley Health System, 2010 HRTO 2126 (Barton).

11There does not appear to be any dispute that Ms. Sleiman signed the Minutes of Settlement and Release dated March 25, 2010, resolving both her grievance and her s. 34 Application. The Minutes of Settlement and Release contain release language specifically contemplating the Code and the subject-matter of the s. 34 Application, and include the following provisions:

9. The Grievor agrees that, within one (1) week of receipt of the initial payments and letter referred to in paragraphs 4, 5 and 6, supra, she will write to the Human Rights Tribunal of Ontario to finally and irrevocably withdraw her Application, File No. 2009-03966-I and advise the Tribunal that she has entered into a settlement in respect of her Application and the matters raised therein. The Grievor hereby accepts that the Minutes constitute a full and final resolution of all issues that were raised or could have been raised in the Application and any other existing and outstanding Applications filed by or on behalf of the Grievor against the Employer.

…

13. The Grievor acknowledges that the payments herein are inclusive of and exhaustive of all possible entitlements under any civil proceeding, the Employment Standards Act, S.O. 2000, c. 41, as amended, the Human Rights Code, R.S.O. 1990, c. H.19, as amended, or otherwise under statute and/or law.

…

15. In consideration of the performance of the undertakings herein, the Grievor hereby releases and forever discharges the Employer, its subsidiaries, affiliates, predecessors and successors, and each of their respective officers, directors, employees and agents, from any and all actions, causes of action, applications, grievances, complaints, claims, demands and proceedings of whatever kind for damages, indemnity, costs, wages, benefits, short-term sick leave benefits, long-term disability benefits, life insurance, compensation, notice of termination of employment or payment in lieu thereof, severance pay, reinstatement, or any other remedy which the Grievor, or her heirs, administrators or assigns had, many now have, or may have in the future arising out of the Grievor’s employment with the Employer, the cessation of such employment and the Grievance, whether pursuant to he collective agreement between the Union and the Employer, the Human Rights Code, the Employment Standards Act, and/or otherwise under stature or at common-law.

…

17. The Grievor acknowledges by signing these Minutes that she has read it over, understands its terms, that she signs it voluntarily without pressure from any person, and that she has been fully and fairly represented by the Union with respect to this matter.

12In light of the clear language in the Minutes of Settlement and Release, the Tribunal must next consider whether there is some reason for not requiring the applicant to be bound by what would otherwise appear to be a binding promise to not proceed with her s. 34 Application before the Tribunal. Some of the reasons discussed in the Tribunal’s jurisprudence include duress (both economic and psychological), fraudulent misrepresentation on the part of the respondent, and the lack of capacity by the applicant to understand the terms of the release. See, for example Monteiro v. Inspec-Sol, 2010 HRTO 2281 (Monteiro).

13As I understand the applicant’s position, she is essentially arguing that she signed the Minutes of Settlement and Release under duress. Where “duress” is put forward as the basis for vitiating a settlement agreement, the party claiming duress is really stating that he or she entered the agreement against his or her own free will. See Monteiro at para. 19. As the Tribunal explained in Barton, supra, a party alleging duress has the onus of establishing that the circumstances surrounding the conclusion of the agreement amount to duress. The legal threshold is an exacting one, which recognizes the strong public interest in the principle of finality.

14The Ontario Court of Appeal described the elements of duress as follows in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157, at para. 9:

… [N]ot all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to “a coercion of the will” of the party relying on the concept.

Duress

15In her email to the Tribunal dated March 30, 2010, the applicant states that she signed the settlement while under “distress” and she did not “trust fair representation” from her union. She states that she strongly believes that she was “discriminated and continuously harassed thru the whole process” from her union and the PHP.

16In her Response to the Application for Contravention of Settlement, filed May 12, 2010, Ms. Sleiman states that, after entering into the agreement, she reviewed the settlement and realized she was not treated fairly, and she did not write to the Tribunal to withdraw her Application because of that. She states that, after she went home, she had time to think without anyone pressuring her. She states that the day she signed the settlement she was under lots of stress from the PHP, as well as the union’s lawyer, and she was not thinking straight. After she was able to sit and think about what happened during her settlement meeting without being pressured, she realized that she signed it under stress.

17At the hearing, Ms. Sleiman testified repeatedly that she had no support from her union, and that she did not get help. She testified that she was under lots of pressure. When asked in cross-examination about being under pressure, Ms. Sleiman testified that she was sick and psychologically tormented, and that she signed the Minutes of Settlement and Release under pressure from her family, including her daughter. She also testified that she had not slept and that she was tired and depressed. Ms. Sleiman did not provide any medical documentation.

18Ms. Sleiman also testified that she was under pressure from the union, that the union’s lawyer did not support her, and that the union’s lawyer told her that she had a 10-day waiting period. When asked if the union’s lawyer told her that she would take the grievance to arbitration, Ms. Sleiman agreed, but testified that she did not trust anybody and that she did not see that the union’s lawyer was supporting her. She agreed that the union’s lawyer went through the settlement documents “paragraph by paragraph”, but referred to psychological pressure, and testified that her family wanted her “out of it.”

19Elizabeth Nurse, the union’s counsel assigned to the arbitration of the grievance filed on Ms. Sleiman’s behalf, testified that she had preparation meetings with Ms. Sleiman and her daughter on March 12 and March 18, 2010. At the meeting on March 18, Ms. Sleiman’s daughter said that they wanted to talk about settlement. Ms. Nurse testified that they discussed settlement possibilities and she did a rough draft.

20In an email dated March 19, 2010, Ms. Sleiman indicated that she reviewed a draft settlement proposal prepared by Ms. Nurse and was okay with Ms. Nurse sending it to the PHP’s counsel. Ms. Nurse testified that the settlement proposal referred to Ms. Sleiman withdrawing her s. 34 Application, and they discussed that at their meeting. Ms. Nurse was very clear both in her evidence-in-chief and cross-examination that there was never any discussion with Ms. Sleiman regarding a 10-day waiting period. Ms. Nurse testified that they talked about a settlement that would resolve everything, including the s. 34 Application. Ms. Nurse explained that Ms. Sleiman was to send a letter withdrawing her s. 34 Application within one week of receiving payments referred to in the settlement agreement, but it was never characterized as a “waiting period.”

21Ms. Nurse testified that she received a response to the proposed settlement from the PHP on March 24, 2010, she advised the applicant, and they met on March 25, 2010. Ms. Nurse testified that she went through the PHP’s counter-proposal “paragraph by paragraph” and discussed with Ms. Sleiman and her daughter making a further counter-proposal. She testified that Ms. Sleiman and her daughter were concerned about a counter-proposal being rejected. Ms. Nurse testified that the applicant and her daughter went for lunch, and when they came back, Ms. Sleiman said she wanted to accept the settlement. Ms. Nurse testified that she suggested waiting until they had heard back from the PHP’s counsel regarding an inquiry she had made, and also suggested that they could proceed to arbitration and settlement could be addressed there. Ms. Nurse testified that she suggested going over Ms. Sleiman’s evidence and said “maybe you should sleep on it.”

22Ms. Nurse testified that Ms. Sleiman and her daughter said they discussed it and Ms. Sleiman wanted to settle and have it over with. Ms. Nurse testified that she focused attention on Ms. Sleiman to satisfy herself why she wanted to settle. Ms. Nurse testified that Ms. Sleiman talked about stress with her children, in that her children were upset about the stress it was causing her, and not feeling supported by the union. She testified that, after a quick review of the agreement, which included the provision that Ms. Sleiman would send a letter to the Tribunal withdrawing her s. 34 Application, and paragraph 17 confirming that she was signing “voluntarily without pressure”, Ms. Sleiman signed the Minutes of Settlement and Release. Ms. Nurse testified that she told Ms. Sleiman that she should not sign if she did not agree with paragraph 17. Ms. Nurse drafted a letter for Ms. Sleiman to send to the Tribunal withdrawing her s. 34 Application, and in an email dated March 25, 2010, Ms. Nurse reminded Ms. Sleiman to send the letter to the Tribunal within one week of the first payment being received.

23After Ms. Sleiman advised the Tribunal, the union and the PHP on March 30, 2010 that she wanted to proceed with her s. 34 Application, Ms. Nurse sent an email to Ms. Sleiman on the same date, stating, in part, as follows:

You will also recall that you agreed in the settlement (para. 17) that you were signing voluntarily and without pressure from any person, and that you had been fully and fairly represented by the Union. We specifically discussed this clause and I advised you not to sign if you felt you could not agree with it. Your daughter also specifically asked you not to settle due to feeling any pressure from her. We also advised you that we were fully willing to take your grievance to arbitration, with me as counsel, or to continue settlement negotiations with the Employer. You chose to sign the settlement. Therefore we cannot agree that you signed the settlement involuntarily or as a result of undue pressure form any person, and we do not agree that the settlement is not valid or enforceable. We consider the settlement to fully settle your grievance, and that you also agreed to settle your Human Rights complaint with the Employer.

24In the circumstances, I find that there is no basis for Ms. Sleiman’s bald assertions that she was under pressure from the union and that the union’s lawyer did not support her. I prefer the evidence of Ms. Nurse which was detailed and consistent with contemporaneous documentation provided by both the union and the employer. I find that Ms. Nurse met with Ms. Sleiman on at least three occasions, and was preparing to proceed to arbitration with the grievance filed on Ms. Sleiman’s behalf. I also find that Ms. Nurse went through the Minutes of Settlement and Release with Ms. Sleiman “paragraph by paragraph”, and when Ms. Sleiman indicated that she wanted to accept the settlement, Ms. Nurse suggested that she either wait until they heard back from the PHP’s counsel, or proceed to arbitration, and that she said to Ms. Sleiman, “maybe you should sleep on it.” I also find that, after Ms. Nurse reviewed the agreement with Ms. Sleiman, including the provisions that Ms. Sleiman would send a letter to the Tribunal withdrawing her s. 34 Application, and that she was signing “voluntarily without pressure”, Ms. Sleiman signed the Minutes of Settlement and Release. There is no evidence whatsoever that Ms. Sleiman was subjected to any discrimination or harassment by her union as she alleges. In my view, it cannot be said that Ms. Sleiman was under any pressure from her union, or the union’s counsel, that would amount to duress in the signing of the Minutes of Settlement and Release.

25Ms. Sleiman also asserted at the hearing that she was under pressure from her family, but did not provide any details. In cross-examination, Ms. Sleiman confirmed that the pressure from her family, including pressure from her daughter, but again she gave no details. It appears that Ms. Sleiman’s daughter attended with her whenever she met with Ms. Nurse. In Ms. Nurse’s March 30, 2010 email to Ms. Sleiman, written four days after Ms. Sleiman signed the settlement agreement, Ms. Nurse states as follows: “Your daughter also specifically asked you not to settle due to feeling any pressure from her.” While Ms. Nurse had no independent recollection of Ms. Sleiman’s daughter making the statement, she testified that she would not have written it in the email if it did not happen. In the circumstances, I find that there is insufficient evidence to determine that Ms. Sleiman was under any undue pressure from her family that would amount to duress in the signing of the Minutes of Settlement and Release.

26With respect to Ms. Sleiman’s claim that she was subjected to duress by her family, the PHP referred to Pytka v. Pytka, 2010 ONSC 6233, at para. 77, wherein the Court states:

… An agreement may only be set aside for duress if the duress originated with, or was imposed by, the counter-party to the agreement or, if the duress came from a third party, that the counter-party to the contract knew about the duress at the time the contract was entered into.

27The PHP submits, and I agree, that there is no evidence to suggest that it had any knowledge of Ms. Sleiman being subjected to any pressure from her family. In any event, having found insufficient evidence to determine that Ms. Sleiman was subjected to duress by her family, I need not address the issue of duress arising from a third party.

28In her April 8, 2010 email to the Tribunal, the union and the PHP confirming that she wished to proceed with her s. 34 Application, Ms. Sleiman alleged that the PHP told a mediator to tell her that they did not want to reinstate her because she is “a muslim woman and they do not want to hire any minority muslim or black because they will seek help form Human right”, that the PHP wants “to hire only white people from Oshawa”, and that the PHP asked her “to look for job in Toronto only where more muslim work there.” Ms. Sleiman repeated these allegations in written materials she provided to the Tribunal, the union and the PHP on April 9, 2010, and in her Response to the Application for Contravention of Settlement. At the hearing, she testified that these comments were made to her at the mediation of her grievance and that these comments contributed to the pressure she was under when she signed the Minutes of Settlement and Release.

29Izabela Wielgosz, a human resources manager with the PHP, testified that a mediation of the grievance filed on Ms. Sleiman’s behalf took place on November 23, 2009, but that the representatives of the PHP did not speak to Ms. Sleiman at the mediation. Ms. Wielgosz was asked about the statements Ms. Sleiman attributed to the PHP at the mediation. Ms. Wielgosz clearly denied that any of the statements were made, whatsoever, by any of the PHP’s representatives at the mediation and testified that the PHP has a very diverse workforce and that they would not engage in such conduct. Ms. Nurse testified that the two union representatives who were with Ms. Sleiman at the mediation both said that this did not happen.

30I have difficulty accepting Ms. Sleiman’s evidence that the mediator conveyed the inappropriate comments that she alleges were conveyed to her at the mediation on November 23, 2009. While the applicant repeatedly asserted that these comments were conveyed to her by the mediator, on behalf of the PHP, Ms. Wielgosz clearly denied that any such statements were made by any of the PHP’s representatives at the mediation, or that they would engage in such conduct. In addition, while I appreciate the hearsay nature of her evidence on this point, Ms. Nurse was clear that the two union representatives who attended the mediation with Ms. Sleiman both said that this did not happen. In my view, it does not seem reasonable that the PHP’s representatives would make the alleged comments at the mediation of the grievance and that, in turn, the mediator would convey such comments to Ms. Sleiman. Considering all of the evidence, and the circumstances under which the comments are alleged to have been made, I am not prepared to accept that the alleged comments were conveyed to Ms. Sleiman by the mediator at the mediation of the grievance.

31Even if any such comments were conveyed to Ms. Sleiman at the mediation of the grievance, the mediation took place on November 23, 2009, at least four months before Ms. Sleiman signed the Minutes of Settlement and Release. There is no indication that she had any direct interaction with representatives of the PHP at the mediation or thereafter. Ms. Wielgosz also gave evidence with respect to subsequent settlement discussions that took place with the union. Ms. Wielgosz testified that, during this time, neither her, nor anyone on behalf of the PHP, had any contact with Ms. Sleiman. In the circumstances, I do not find that the PHP subjected Ms. Sleiman to duress in relation to her signing of the Minutes of Settlement and Release on March 25, 2010.

Whether Ms. Sleiman Understood The Minutes Of Settlement And Release

32Ms. Sleiman also stated in her Response to the Application for Contravention of Settlement that she thought she had the right to reject the settlement, “as long as it is before 7 days of receiving the settlement”, because she was told that she had 7 days to send a letter “dismissing” her file. At the hearing she testified that that the union’s lawyer told her that she had a 10-day waiting period.

33Ms. Sleiman did not call any evidence that she was incapable of understanding that the Minutes of Settlement and Release included a full and final release and an agreement to withdraw her s. 34 Application with the Tribunal, nor did there appear to be an issue that she was temporarily incapable at the time she signed the document. See Monteiro at paras. 24 – 28.

34I also find Ms. Sleiman’s evidence at the hearing that Ms. Nurse told her that she had a 10-day waiting period to be inconsistent with her earlier assertion that she thought she had the right to reject the settlement because she was told she had 7 days to send a letter “dismissing” her file. In the circumstances, I prefer the clear evidence of Ms. Nurse that there was never any discussion with Ms. Sleiman regarding a 10-day waiting period.

35I also have difficulty with Ms. Sleiman’s position that she could reject the settlement offer after the respondent was required to issue initial payments and a letter to her under the terms of the settlement agreement. In addition, I have no reason to doubt the evidence of Ms. Nurse that she discussed with Ms. Sleiman at their meeting on March 19, 2010 paragraph 8 of the proposed settlement which referred to Ms. Sleiman withdrawing her s. 34 Application, and that they talked about a settlement that would resolve everything, including the s. 34 Application. Ms. Nurse also testified, and Ms. Sleiman agreed, that Ms. Nurse went through the settlement documents with Ms. Sleiman “paragraph by paragraph”, which would have included the comprehensive release clause in paragraph 15, when they met on March 25, 2010. I also have no reason to doubt Ms. Nurse’s evidence that, later that same day, she also quickly reviewed the settlement documents with Ms. Sleiman, including the provision that Ms. Sleiman would send a letter to the Tribunal withdrawing her s. 34 Application, before Ms. Sleiman ultimately signed the document. In the circumstances, I do not accept that Ms. Sleiman did not understand that by signing the Minutes of Settlement and Release she was agreeing to not proceed with her s. 34 Application.

36Even if Ms. Sleiman did not fully understand what she was giving up when she signed the Minutes of Settlement and Release, which I do not believe to be the case in light of the discussions and review of the documents that I have found Ms. Nurse had with Ms. Sleiman, I adopt the statements made by the Tribunal in Perricone at para. 69:

[I]f, as the applicant contends, she chose to sign the Release without ensuring that she understood it, then she is responsible for that choice…. A party to a legal agreement cannot enter into it without taking the time and effort to understand it and then rely on her own actions as the basis upon which to resile from the agreement.

Summary

37Ms. Sleiman was capable of understanding the terms of the Minutes of Settlement and Release and I find that she did. She was not under duress at the time she executed that document. To allow the s. 34 Application to proceed in light of the clear release language in the settlement documents prohibiting the s. 34 Application from proceeding, would, in my view, amount to an abuse of the Tribunal’s process.

38The s. 34 Application is dismissed. In the circumstances, it is not necessary for me to consider whether the Application should also be dismissed as having been appropriately dealt with in another proceeding.

The Application For Contravention Of Settlement

39The relevant provisions of the Code are as follows:

45.9(1) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.

(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(8) If, on an application under subsection (3), the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention.

40Ms. Sleiman and the PHP signed a written agreement on March 25, 2010, settling Ms. Sleiman’s s. 34 Application. Having found no basis to set aside Ms. Sleiman’s agreement to not proceed with her s. 34 Application, I find that Ms. Sleiman and the PHP are bound by the terms of the Minutes of Settlement and Release, and the parties should abide by the terms.

41The PHP asserts in its Application, and Ms. Wielgosz testified at the hearing, that Ms. Sleiman breached the settlement agreement in two respects. First, it is asserted that Ms. Sleiman breached paragraph 9 of the Minutes of Settlement and Release where she agreed to write to the Tribunal to withdraw her s. 34 Application, and advise the Tribunal that she had entered into a settlement in respect of her Application and the matters raised therein, within one week of receipt of initial payments and a letter from the PHP. Although the payments and letter were sent to Ms. Sleiman on March 30, 2010, it appears that prior to receiving the payments and letter, Ms. Sleiman wrote to the Tribunal on March 30, 2010, and requested that the Tribunal continue to deal with her s. 34 Application. While Ms. Sleiman did not write to the Tribunal to withdraw her s. 34 Application as agreed to in paragraph 9 of the Minutes of Settlement and Release, this occurred in the context of Ms. Sleiman submitting that she signed the settlement agreement under duress. In my view, this may constitute a technical breach of the settlement agreement; however, in the circumstances, it is not necessary for me to determine if Ms. Sleiman actually breached the settlement agreement by not writing to the Tribunal to withdraw her s. 34 Application, as, for the reasons set out below, I do not find that it would be appropriate to issue any further order in respect of any such contravention of settlement.

42Second, it is asserted that Ms. Sleiman contravened the confidentiality provisions of the settlement when she disclosed the settlement terms and conditions to the Tribunal in her email of March 30, 2010 to the Tribunal, the PHP and the union. Paragraph 10 of the Minutes of Settlement and Release states as follows:

10. The parties and the Grievor recognize and agree that the terms and conditions of this settlement shall be kept confidential, not to be disclosed to any other person, with the exception of the Grievor’s financial and legal advisors, her immediate family, and except as required by law. To the extent any person or party asks about the outcome of the Grievance or Application, the parties and the Grievor will be limited to communicating only that the matters were resolved to the satisfaction of the parties. Any breach by the Grievor of this confidentiality provision will disentitle the Grievor to any payments provided for under these Minutes of Settlement and Release which have not already been paid to the Grievor.

43In my view, it would be unduly technical in the circumstances of this case to determine that Ms. Sleiman’s providing a copy of the Minutes of Settlement and Release to the Tribunal constitutes a breach of paragraph 10 of the agreement. While Ms. Sleiman was not required to provide a copy of the settlement agreement to the Tribunal at the time she did, she was advising the Tribunal and the other parties that she wanted to proceed with her s. 34 Application, and that it was her position that she signed the settlement agreement under duress. In the circumstances, the Minutes of Settlement and Release became arguably relevant to the issues raised before the Tribunal in this matter, and further copies of the settlement agreement were provided to the Tribunal by the PHP.

Remedy

44In its Application for Contravention of Settlement, the PHP seeks the following remedies:

(a) a declaration that there is a binding settlement between the parties;

(b) a declaration that Ms. Sleiman contravened the settlement in not taking the steps to withdraw her application;

(c) a declaration that Ms. Sleiman contravened the confidentiality provisions of the settlement when she disclosed the settlement terms and conditions in her e-mail of March 30, 2010;

(d) an order requiring Ms. Sleiman to comply with the terms of the settlement;

(e) an order dismissing Ms. Sleiman’s application (Tribunal File No. 2009-03966-I);

(f) an award of damages against Ms. Sleiman, payable to the Applicant, in the amount of $6,000 for partial loss of value in the settlement, together with an order that any damages awarded may be set off against any amounts owed to Ms. Sleiman under the Agreement.

45At the hearing, the PHP submitted that the finality it “purchased” has been lost, and that it has been forced to deal with the contravention of the settlement. The PHP submitted that it was subjected to extensive legal costs, because of the contravention, and greater costs because the PHP’s participation has costs. The PHP submitted that those are the damages that it seeks to have awarded to it in light of the contravention of settlement.

46I have already determined that the parties are bound by the terms of the Minutes of Settlement and Release and should abide by them, and that Ms. Sleiman’s s. 34 Application is dismissed based on the doctrine of abuse of process. With respect to PHP’s request for damages, the Tribunal may make any order that it considers appropriate to remedy a contravention of settlement that it determines a party has made within the meaning of s. 45.9 of the Code. In the present case, it appears that the PHP is essentially seeking damages for legal costs incurred as the result of its participation in further proceedings resulting from Ms. Sleiman’s position that she signed the settlement agreement under duress, and the PHP’s Application for Contravention of Settlement. It is clear that this Tribunal does not have the authority to award legal costs under the Code or the Tribunal’s Rules of Practice. See, for example Facciolo v. 1383078 Ontario, 2010 HRTO 1686. In the particular circumstances of this case, even if I was to determine that Ms. Sleiman contravened paragraph 9 of the settlement agreement, I do not find that it would be appropriate to make any further order, including any award for damages for any such contravention of settlement. Given the absence of any order, the breach of settlement Application is dismissed.

ORDER

47The applicant’s s.34 Application is dismissed. The breach of settlement Application is dismissed.