Kenute White v. Bendale Acres Long Term Care Homes and Services, 2012 HRTO 460

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenute White

Applicant

-and-

Bendale Acres Long Term Care Homes and Services

Respondent

DECISION

Adjudicator: Brian Cook

Date: March 5, 2012

Citation: 2012 HRTO 460

Indexed as: White v. Bendale Acres Long Term Care

APPEARANCES

Kenute White, Applicant ) Self- represented

Bendale Acres Long Term Care Homes ) Zoya Trofimenko, Counsel and Services, Respondent )

Canadian Union of Public Employees, ) Melissa Kronick, Counsel Local 79, Proposed intervenor )

1The purpose of this Decision is to decide whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed, in accordance with Rule 19A.1 of the Tribunal’s Rules of Procedure.

2The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 11, 2011. The respondent has been directed by the Tribunal not to file a Response at this time.

3The Tribunal issued a Case Assessment Direction dated September 14, 2011, in which it stated that, on its own initiative, the Tribunal would schedule a summary hearing by teleconference to determine whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that it will succeed.

4The Tribunal directed the applicant to make submissions about why the Application should not be dismissed as having no reasonable prospect of success and to point to the evidence on which the applicant would prove a link between the respondent’s actions and the grounds cited. The applicant was also directed to outline the evidence that would be used to show intention to reprise and a link between the alleged actions and a prior assertion of human rights. The respondent was not required to file any materials or a Response to the Application.

5Subsequent to the Case Assessment Direction, the bargaining unit which represented the applicant during his employment, Canadian Union of Public Employees, Local 79 (“the union”), filed a Request to Intervene. In support of its Request, the union stated that the discipline that had been issued to the applicant and which was referenced in his Application had been settled by minutes of settlement between it, the applicant and the respondent. The union also stated that issues pertaining to the termination of the applicant’s employment had been resolved by minutes of settlement between it, the applicant, and the respondent. A copy of the minutes of settlement dated June 9, 2011, along with a final release and indemnity, was attached to the union’s request.

6The applicant filed a Response to a Request for Order on October 18, 2011, opposing the union’s request. He submits, “At no time did the union deal with my Human Right[s] issue. Therefore; I do not want the union to intervene”.

7The respondent filed a Response to a Request for Order During Proceedings on October 20, 2011, consenting to the union’s request to be an intervenor.

8The Summary Hearing was held by telephone conference call on February 7, 2012. The applicant participated and was self-represented. The respondent was represented by Zoya Trofimenko. The union was represented by Melissa Kronick. For the reasons explained below, it was not necessary to make a determination on the issue of whether the union should be an intervener in the Application. Apart from a minor clarification of a factual detail, the union did not make submissions on the issues in the summary hearing.

The Applicant’s Position

9The Application itself indicates that the only ground of alleged discrimination is reprisal. However, in the conference call, the applicant indicated that he intended to also allege discrimination on the basis of race, colour and place of origin. He stated that he is a Canadian citizen and a Black man of Jamaican descent. He noted that he indicated in Form 1-A, which was part of the Application and which provides additional information in cases where discrimination in employment is alleged, that the respondent’s Director of Nursing, whom he identifies as a “White English Woman”, did not like him and would discipline him for any mistake that he made, which led to his termination.

10In the hearing, the applicant explained that he believes that other employees who did similar things were not disciplined.

11The respondent noted that the applicant filed a grievance with respect to the discipline that he was given. All these grievances were settled.

12The respondent also filed a report with the College of Nurses. The report listed the incidents during the applicant’s employment that were the subject of discipline. The applicant alleges that this report was done in reprisal and that it was also discriminatory. Ms. Trofimenko pointed out that that the respondents were required to file a report with the College because of the operation of section 85.5 of Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, Chapter 18. The College subsequently wrote to the applicant to inform him that no further investigation by the College was warranted.

Analysis and Findings

13Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

14Furthermore, in Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

15On the Application itself, the applicant indicated that the only ground of discrimination was reprisal. Section 8 of the Code states as follows:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

16The prohibition against reprisal protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondents intended to punish or retaliate against the applicant. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878, at paras. 33-34 as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

17In this case, the alleged reprisal consists of the report form that was filed with the College. The respondents were required to file this report by law and so the fact that it was filed cannot, on its own, be seen as reprisal. Moreover, when the report was reviewed by the College, it was determined that no further action was required.

18As noted, the applicant indicated that he intended also to allege discrimination on the grounds of race, colour and place of origin.

19The applicant believes that he was disciplined for things that others were not disciplined for and that this was discriminatory because he is Black and of Jamaican descent. He has not identified any example of another person who was not disciplined for doing the things that the applicant was disciplined for.

20The Tribunal does not have the power to deal with general allegations of unfairness. It is not sufficient for the applicant to allege unfairness and assert that the unfairness must be related to a Code-protected ground. For an Application to continue in the Tribunal’s process there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code: Forde v. Elementary Teachers’ Federation of Ontario 2011 HRTO 1389.

21Assuming that the Tribunal permitted the applicant to amend the Application to include the additional grounds, I am satisfied that there is no reasonable prospect that the applicant could successfully establish that he was discriminated against because of race, colour or place of origin.

22Even if the applicant could establish discrimination, I am satisfied that the Application could not succeed because of the Minutes of Settlement and the Release signed by the applicant. By signing those documents, the applicant agreed that he had no claim under the Code in relation to his employment or the end of that employment. At the summary hearing, the applicant was given an opportunity to make oral submissions regarding the release, the circumstances in which it was signed, and its impact on his ability to proceed with the Application.

23In cases where the applicant has signed a full and final release stating that he will not bring an Application to the Tribunal but then does file an Application, the Tribunal will generally not permit the Application to proceed. The reasons for this were explained in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, in the following terms, at paragraphs 34 and 35:

The importance of final and binding settlements in the unionized workplace is articulated in the purposes of the [Labour Relations Act], which include “[t]o promote the expeditious resolution of workplace disputes”. The importance of binding agreements was articulated by the OLRB as follows in TRW Automotive (Kelsey-Hayes Canada Ltd.), [2000] OLRB Rep. July/Aug. 731 at para. 14:

Parties are entitled to rely on agreements freely entered into. Nothing would be more disruptive to orderly labour relations than to permit parties to revoke agreements among employees, their trade union, and their employer into which the parties have entered to settle disputes or potential disputes.

This is true of human rights disputes, in whatever social area they arise. There is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end.

24In this case, the applicant filed a grievance in regard to the termination of his employment. The grievance was settled and the applicant signed the Minutes of Settlement and a Final Release and Indemnity, which provided in part, that the applicant agreed that he had no further claim against his employer in respect of the Code.

25The applicant explained that at the grievance settlement meeting, the union counsel gave him documents to sign. He signed them but did not read them. He indicated that he signed them only reluctantly.

26The applicant also argued that the Release concerns only the employer and not the specific individuals whom he alleges discriminated against him. However, in fact the Release releases, among others, the employer and its employees.

27In exchange for signing the documents, the applicant received a significant financial settlement. There is no suggestion that the applicant signed the documents under duress. He only says that he signed them without reading them and feels that he was not adequately represented by the union although the basis for that feeling is not clear.

28The Release was a legal agreement. I agree with the finding by the Tribunal in Rivard v. George Brown College, 2009 HRTO 2212 (at paragraph 22), that a party to a release cannot enter into the release without taking the time to read and understand the terms of the release and then rely on his lack of attention as a reason to undo the terms of the release. See also Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, at para. 67.

29For all of these reasons, I am satisfied that there is no reasonable prospect that the Application could succeed and it is dismissed on that basis.

30It is not necessary to deal with the union’s request to intervene.