Jo-Anne Munday v. Rygiel Supports for Community Living, 2012 HRTO 960

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jo-Anne Munday

Applicant

-and-

Rygiel Supports for Community Living and Canadian Union of Public Employees and its Local 4967

Respondents

DECISION

Adjudicator: David Muir

Date: May 11, 2012

Citation: 2012 HRTO 960

Indexed as: Munday v. Rygiel Supports for Community Living

APPEARANCES

Jo-Anne Munday, Applicant ) Self-represented

Rygiel Supports for Community Living, )

Respondent ) Chris Barone, Representative

Canadian Union of Public Employees ) David Steele, Counsel

and it Local 4967, Respondent )

1This is an Application made under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant claims that her right to be free of discrimination in employment on the basis of disability and creed have been infringed by both respondents.

3In their respective Responses to this Application the respondents both sought the early dismissal of the Application on a number of bases. Rygiel Supports for Community Living (Rygiel), the applicant's former employer, takes the position that the Application should be dismissed because the applicant has signed a full and final release regarding the same issues raised in the case.

4The Canadian Union of Public Employees and its Local 4967 ("CUPE") takes the position that the Application should be dismissed for a number of reasons. CUPE argues that the applicant has failed to set out a prima facie case of discrimination in relation to the grounds claimed, or alternatively that for the same reasons the Application has no reasonable prospect of success. CUPE also states that the Application is an abuse of process because the issues raised by the applicant regarding its conduct have been raised, or if not raised, should have been raised before the Ontario Labour Relations Board (the "Board") in a Duty of Fair Representation application pursuant to section 74 of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A ("DFR"), as well as in a number of grievances filed on the applicant's behalf all of which have been resolved. Finally CUPE states that the allegations made in respect of events prior to March 29, 2010 are untimely, the Application had been filed on March 29, 2011

5The Tribunal in a Case Assessment Direction dated November 21, 2012 directed that the Registrar schedule a half day preliminary hearing to hear the parties submissions on the issues raised by the respondents. A hearing date to deal with the issues raised by the respondents took place on May 1, 2012.

6The Application is dismissed.

The Rygiel Application

7By way of background the central allegations in the Application relate to the applicant's suspension and termination from her employment in February and March 2010. The applicant also alleges that she was dealt with unfairly at a mediation in respect of two grievances filed on her behalf by the respondent CUPE in relation to the applicant's suspension and dismissal from employment. The mediation resulted in a settlement which included amongst other terms a release in favour of Rygiel. The applicant subsequently filed a DFR alleging that CUPE had represented her in a manner that was arbitrary, discriminatory and in bad faith. One of the central issues in the DFR was whether the applicant had signed Minutes of Settlement (MOS) resolving the suspension and dismissal grievances at the mediation and/or had understood what she was signing. The Board determined after hearing from the applicant and several other witnesses from CUPE and Rygiel that the MOS was valid and binding on the applicant because she had signed it and understood what she was signing.

8The MOS contains a number of paragraphs releasing Rygiel, one of which is as follows:

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, longterm 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, May now have, or may have in the future arising out of the Grievor's employment with the Employer, her resignation from the Employer, and the Grievances, whether pursuant to the collective agreement between the Union and the Employer, the Human Rights Code, the Employment Standards Act, and/or otherwise under statute or at common-law.

9The terms of the release clearly encompass an application made under the Code. However, accepting that the release expressly encompassed an application under the Code does not end the enquiry. In Bielman v. Casino Niagara, 2009 HRTO 123, the Tribunal stated:

The Code does not explicitly bar applications such as this where release has been signed by the applicant. In each case where a respondent requests early dismissal of an application, the Tribunal must decide whether, in the circumstances, it would constitute an abuse of the Tribunal's process to allow the application to proceed to a hearing on the merits. An important consideration in that analysis is the respondent's reasonable expectation that a release of this kind will bring finality to any employment related dispute they may have with a former employee.

10The Tribunal has held that the existence of a full and final release is not a statutory bar to continuing an application. Nonetheless there are many reasons to uphold agreements reached between freely contracting parties. Failure to uphold agreements freely arrived at, and to hold parties to their commitments, can undermine the integrity of negotiated settlements and hinder the timely and informal resolution of disputes. See Martinez v. Siemans 2010 HRTO 1027.

11The Tribunal has also 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 Dube v. Rockhaven Recovery, 2009 HRTO 53; Sinnett v. Orlick Industries, 2009 HRTO 916; Kailani v. Securitas Canada, 2009 HRTO 1183; Martel v. North Shore Community Support Services, 2010 HRTO 957. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, also 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.

12In this case the applicant argues that she was subject to duress, because a union official attended the mediation over her objection and accordingly the MOS are invalid.

13The Ontario Court of Appeal described the elements of duress as follows in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157. At paras. 8 – 9 the Court of Appeal held:

There is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis.

However, not 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. See: Stott v. Merit Investment Corp. [(1988)], 1988 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. C.A.), as para. 89.

14In Stott, supra, the Ontario Court of Appeal also stated that the party seeking relief must have taken steps to avoid the act complained of and followed Pao On v. Lau Yiu, [1979] 3 All E.R. 65 (Privy Council) which stated that four factors must exist in order to support a finding of coercion of the will. At p. 78 of Pao On, supra, the Court held:

In determining whether there was a coercion of will such that there was no true consent, it is material to enquire whether the person alleged to have been coerced did or did not protest, whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it.

15It is not clear how the mere presence of a union official would constitute duress and the applicant offered no real explanation for why this was the case. I am not satisfied that the applicant was subject to duress at all in the sense contemplated by the cases cited above.

16The applicant also continues to take the position that she does not remember what happened the evening of the mediation and that she did not sign the MOS. The applicant also states that it was not likely that the grievances could have been resolved in the time the parties had. The applicant states that to produce the MOS and review them could not have taken place in the two or so hours that she recalls the mediation taking place.

17In my view the validity of the MOS has been determined by the Board in its decision of November 21, 2011 dealing with the applicant's DFR, where all of the applicant's issues with the mediation, her understanding of what she was signing and whether she signed the MOS at all were canvassed and considered by the Board. I cannot change the result of that Decision – the MOS is valid and binding on the applicant.

18I am satisfied that the applicant freely signed the MOS which contained a full and final release preventing her from bringing this Application. There are no reasons related to the release or the manner in which it was agreed which would justify setting it aside and allowing this Application as it relates to the respondent employer to proceed further. For all of these reasons the Application as against Rygiel is dismissed as an abuse of process.

The CUPE Application

19CUPE asserts a number of reasons why this Application should be dismissed as set out above including that it has no reasonable prospect of success. I agree. The allegations in the Application are largely related to the conduct of the employer. There is an allegation that Rygiel failed to transfer the applicant when initially requested to do so. Later when the applicant was transferred after providing a medical note, the applicant alleges that she lost hours of work and alleges that this was discriminatory. There are also a number of allegations of unfair treatment which do not appear to raise any Code grounds. There are no allegations with respect to CUPE that make any link to the Code.

20At the hearing I asked the applicant to tell me what CUPE had done or not done that she considered to be discriminatory and attempted to explain that there must be a link between the action or inaction of the union and a protected ground under the Code. The applicant was unable to do so. The applicant stated that she supplied a medical note in support of a transfer but when I asked how this would establish a violation of the Code by CUPE the applicant could not say. The applicant also related an incident in 2008 involving another employee and said that it all snowballed from there, but again there was no evident nexus between anything CUPE did or did not do in respect of that incident and the protections of the Code.

21The applicant is evidently unhappy with the way she was treated by Rygiel in particular as it relates to her dismissal. She also has concerns about the manner in which she was represented by CUPE. However there is nothing in the allegations she has made that could conceivably support a violation of the Code by CUPE. I find that this Application as it relates to CUPE has no reasonable prospect of success and should be dismissed.

22I also find that this Application as it relates to CUPE is an abuse of process. As noted above the applicant filed a DFR at the Board. Many of the factual issues raised in this Application were raised before the Board. CUPE states that to the extent that an issue might not have been raised there it ought to have been and to attempt to re-litigate the case under a new legal theory – a claim of Code discrimination – would be an abuse of process. Similarly CUPE argues that to the extent that the applicant is in effect splitting her case by raising issues here that could have been raised at the Board amounts to an abuse of the Tribunal's process. In this regard CUPE relies on the Tribunal's Decision in Sutton v. United Food and Commercial Workers Canada, Local 175 2010 HRTO 935. In considering this issue in that case I held at paragraphs 32 to 34 as follows and find it equally applicable to this matter:

I also agree with the respondent union that it is an abuse of process to attempt to re-litigate the same case based on a different legal theory, if that is what has occurred here. Arguably, perhaps, the applicant was only saying at the OLRB that he was treated unfairly and now he is relying upon Code related grounds to overturn the settlement and re-litigate his grievances. Section 74 of the LRA prohibits a trade union from discriminating against a member in its representation of them and this jurisdiction includes Code related discrimination. Moreover, the OLRB is entitled to, indeed required to, consider the Code in dealing with the matters before it under its constituent statute.

There can be no dispute that the OLRB had jurisdiction to consider an allegation of discrimination on the part of the union on Code grounds in considering the arbitration hearing and settlement. The applicant had an obligation to raise the issue there. Therefore, to the extent that this Application is an attempt to re-litigate the same factual circumstances using a different legal theory, it is an abuse of process. I say to the extent that it is an attempt to re-litigate the same circumstances, because in my view, having reviewed the pleadings in each, it is not clear to me that the allegations of discrimination are any less clear in the DFR application than in the instant matter.

I find that the logic of section 45.1 as well as the doctrine of abuse of process requires that an applicant make choices about where they intend to pursue their remedies. Where, as in this case, an applicant attempts to re-litigate the same factual circumstances where it is clear that the issue could have been dealt with in the prior proceeding the doctrine of abuse of process will more often than not come into play. See Asiamah v. Olymel S.E.C./L.P., 2009 HRTO 1750, 2009 HRTO 1750. .

23For all of these reasons the Application is dismissed.