Coelho v. Hydro One Brampton Networks Inc., 2013 HRTO 1204

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Teresa Coelho

Applicant

-and-

Hydro One Brampton Networks Inc.

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: July 10, 2013

Citation: 2013 HRTO 1204

Indexed as: Coelho v. Hydro One Brampton Networks Inc.

appearances

Teresa Coelho, Applicant ) Marcia Channer, Representative

Hydro One Brampton Networks Inc., ) Dana McDonald, Counsel

Respondent ) )

International Brotherhood of Electrical ) Katherine Ferreira, Counsel

Workers, Local 636, Proposed Intervenor ) )

INTRODUCTION

1The purpose of this Decision is to decide whether the Application should be dismissed in whole or in part because another proceeding has in whole or in part appropriately dealt with the substance of the Application, and/or because it is an abuse of process.

2The parties and the proposed intervenor attended a preliminary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed these issues. I have decided to dismiss the Application. The following are my reasons for the dismissal.

BACKGROUND

3The applicant was employed as a Credit and Collections Clerk in the respondent’s Credit and Collections Department. On March 23, 2010, she went off work on a sick leave.

4On March 9, 2011, while still on sick leave, the applicant filed her first Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), with the Tribunal, which alleged that the respondent discriminated against her because of her disability with respect to employment. Specifically, she alleged that between 1990 and March 23, 2010, the respondent subjected her to harassment and a poisoned work environment, and then failed to accommodate her disability-related needs by denying her job applications for positions outside her department.

5On March 17, 2011, the respondent informed the applicant that she was not the successful candidate for a Customer Accounts Representative position that she had applied for in February 2011. In April 2011, the respondent informed the applicant that she was also not the successful candidate for a Customer Accounts Clerk Typist position that she had applied for in March 2011.

6On April 12, 2011, the applicant returned to work from her sick leave. On May 5, 2011, the International Brotherhood of Electrical Workers, Local 636 (the “Union”) filed a grievance on her behalf, which alleged that the respondent violated the Collective Agreement and any other relevant entitlement under the law by failing to award her the Customer Accounts Clerk Typist position. On June 14, 2011, the applicant went off work on another sick leave.

7On July 4, 2011, the respondent filed a Response to the Application, which denied the allegations of discrimination. The respondent also noted that it had denied the applicant the Customer Accounts Representative position in March 2011 and the Customer Accounts Clerk Typist position in April 2011, and that the denial of the latter position was the subject of an ongoing grievance.

8On February 27, 2012, the applicant, the respondent and the Union attended a mediation at the Tribunal. The applicant had a legal representative. The parties and the Union executed Minutes of Settlement in which they agreed that there was a full and final resolution of the Application. The Minutes included the following terms:

• The respondent agreed to pay the applicant compensation for her legal expenses.
• The respondent agreed to post the applicant’s current position.
• The respondent agreed to hold the vacant position of any successful internal candidate, and assign it to the applicant when she returned to work.
• The applicant agreed not to apply for any other positions for a period of two years from the date that she assumed the vacant position.
• The Union agreed not to file any grievances arising from the Minutes of Settlement.
• The applicant agreed to execute a release satisfactory to the respondent and the Union.
• The parties and the Union agreed that the May 5, 2011 grievance was withdrawn.

9Following the mediation, the respondent forwarded a release to the applicant, which required her to agree to the following:

• To release the respondent and the Union from all human rights and employment matters arising prior to February 27, 2012.
• Not to allege in any future action that she has suffered damages, loss or injury as a result of the matters released herein.
• The release acts as an estoppel in the event of any action brought by her with respect to the matters covered by the release.
• Not to disclose or publicize the fact of the claim or settlement or any term of the settlement.
• To declare that she understood the terms of the settlement, and received legal advice, or waived her right to such advice, with respect to the settlement and release.

10The applicant refused to sign the release. She then retained a new legal representative, and, on May 17, 2012, filed a second Application under s. 34 of the Code with the Tribunal, which alleged that the respondent discriminated against her because of her disability and subjected her to reprisals with respect to employment. Specifically, she alleged that between February and April 2011, the respondent failed to accommodate her disability-related needs by denying her job applications for two positions (Customer Accounts Representative and Customer Accounts Clerk Typist) outside her department. She also alleged that in May 2011, the respondent subjected her to harassment and reprisals for filing a grievance about the Customer Accounts Clerk Typist position by asking her in a taunting manner why she did not have all the paperwork to do her job, and investigating a complaint by a co-worker against her.

11On June 6, 2012, the respondent sent the applicant a letter, which informed her that pursuant to the Minutes of Settlement, it had posted and filled her position, and was holding the resulting vacant position of Clerk I – Switchboard and Reception for her to fill upon her return to work.

12On July 20, 2012, the respondent filed a Response to the second Application, which denied the allegations of discrimination and reprisal, and requested that the Tribunal dismiss the second Application on a preliminary basis because another proceeding has appropriately dealt with its substance, and it is an abuse of process. Specifically, the respondent stated that the allegations in the Application were settled pursuant to the Minutes of Settlement that were executed on February 27, 2012.

13On July 23, 2012, the Union filed a Request to Intervene, which stated that the applicant declined its offer to file a grievance on her behalf with respect to the Customer Accounts Representative position, and only asked it to file a grievance with respect to the Customer Accounts Clerk Typist position. The Union further stated that pursuant to the doctrine of abuse of process, the Tribunal should therefore not entertain the allegations in the second Application which relate to the allegations in her first Application, the Customer Accounts Representative position, and the Customer Accounts Clerk Typist position because they were settled pursuant to the Minutes of Settlement that were executed on February 27, 2012.

14On August 31, 2012, the applicant filed a Reply, which opposed the respondent’s Request to dismiss her Application on a preliminary basis. The applicant stated that there is no connection between her first Application and her second Application, the grievance with respect to the Customer Accounts Clerk Typist position did not deal with discrimination because of disability, and, in any case, her previous allegations remain unresolved because although Minutes of Settlement have been signed, she refused to sign the release and the respondent refused to pay her compensation for her legal expenses.

15On October 5, 2012, the Tribunal sent the parties and the Union a letter, which notified them that a hearing would be scheduled to deal with the preliminary issues raised by the respondent. The hearing took place by teleconference on January 28, 2013.

ANALYSIS

16The respondent has requested that the Tribunal dismiss the Application on a preliminary basis pursuant to s. 45.1 of the Code and/or s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”). Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules of Procedure provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application. Section 23(1) of the SPPA 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.

17I will deal first with the respondent’s request to dismiss the Application because it is an abuse of process. The Tribunal has held that the doctrine of abuse of process can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an application to continue. The circumstances that can give rise to an abuse of process are not finite, and may include, but are not limited to, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of abuse of process is on the integrity of the administrative justice system. See Johnston v. P & H Foods Division of Parrish & Heimbecker, 2013 HRTO 589 at para. 8, and Campbell v. Toronto District School Board, 2008 HRTO 62 at paras. 35-37.

18The Tribunal has dismissed applications as an abuse of process where an applicant has entered into a settlement resolving his or her outstanding employment issues. In Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, the Tribunal explained at para. 39:

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.

19Moreover, the Tribunal has dismissed applications even where the settlement agreement did not contain specific release language between the parties, but where it was apparent from the agreement that the parties intended to bar future litigation with respect to all outstanding issues, including human rights issues. See Holowka v. Ontario Nurses Association, 2010 HRTO 2171, and Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151.

20In its submissions, the respondent stated the Application should be dismissed as an abuse of process because the parties attended the mediation with an intention to settle all outstanding employment issues, and executed the Minutes of Settlement with an understanding that it resolved all such issues. The respondent also stated that it had an honest belief that its agreement to fulfill the terms of the settlement, particularly holding a vacant position and assigning it to the applicant when she returned to work, resolved all the outstanding employment issues. The respondent further stated that the fact that the applicant has now reneged on signing the release does not change the fact that the parties contracted to settle all outstanding employment issues between them.

21In its submissions, the Union stated that it agreed with the respondent that the Application should be dismissed as an abuse of process because the parties attended the mediation with an intention to settle all outstanding employment issues, and executed the Minutes of Settlement with an understanding that it resolved all such issues.

22In her submissions, the applicant stated that the Application should not be dismissed as an abuse of process. She stated she was willing to start over and move on, but that she did not sign the release because she disagreed with quite a few things in it. Specifically, she stated that the release did not benefit her, and that she was giving up a lot and getting nothing in return. For example, she stated that it was unfair to prohibit her from filing any grievances for a period of two years.

23In response to questions from the Tribunal, the applicant admitted that when she attended the mediation, she wanted everything over and done with. Specifically, she stated that the respondent and the Union wanted to resolve both the Application and the grievance, which she agreed to, after consulting with her legal representative, because she wanted all of it cleared up. She also admitted that her legal representative subsequently told her that the release was consistent with the Minutes of Settlement. However, she stated that when she read the release, she felt that not all her human rights issues had been dealt with. Specifically, she stated that the human rights issues that she raised in her second Application had not been dealt with.

24In response to questions from the Tribunal, the applicant also admitted that if the release had been satisfactory to her, she never would have filed a second Application with the Tribunal.

25In my view, the Application at hand is an abuse of process. The applicant did not argue that she failed to receive consideration, was under duress, or did not have independent legal advice when she signed the Minutes of Settlement. Rather, she argued that she refused to sign the release because she disagreed with its terms. The problem with this argument is that the Minutes, which she signed with her legal representative present, specifically state that she agreed to execute a release satisfactory to the respondent and the Union.

26The applicant also identified a specific concern about the release, which does not make sense. She stated that the release was unfair because it prohibited her from filing any grievances for a period of two years. In fact, there is no such term in the release. The applicant appears to be referring to the terms in the Minutes of Settlement, which prohibit her from applying for any other positions for a period of two years from the date that she assumed the vacant position, and prohibit the Union from filing any grievances arising from the Minutes.

27The main concern that the applicant identified about the release was that she felt that the human rights issues that she raised in her second Application had not been dealt with. The problem with this argument is that the respondent and the Union submitted that at the time of signing the Minutes of Settlement, the parties intended to resolve all outstanding employment issues, and, in response to the questions from the Tribunal, the applicant admitted that when she attended the mediation, she also wanted everything over and done with, and that she agreed to resolve both the Application and the grievance because she wanted all of it cleared up. She also admitted that her legal representative subsequently told her that the release was consistent with the Minutes.

28Furthermore, the “new” allegations in her second Application are inextricably linked to her first Application, the May 5, 2011 grievance, and the Minutes of Settlement. Pursuant to the Minutes, the respondent is holding the vacant position of Clerk I – Switchboard and Reception for her to fill upon her return to work. This is clearly a resolution of the allegation in the first Application, the grievance, and the second Application that the respondent failed to accommodate her disability-related needs by denying her job applications for positions outside her department. Moreover, the allegation that the respondent subjected her to harassment and reprisals for filing a grievance is inextricably linked to the same grievance, which was withdrawn as part of the settlement.

29Based on the above, although the wording of the Minutes of Settlement and the release are different (the Minutes refer to a full and final resolution of the first Application and the withdrawal of the grievance, and the release refers to releasing the respondent from any future action related to human rights and employment matters arising prior to February 27, 2012), I am satisfied that they are referring to the same thing.

30Accordingly, I find that the applicant, the respondent and the Union entered into Minutes of Settlement with a joint intention to settle all outstanding employment issues, including the human rights issues set out in the applicant’s first Application and those that arose between the filing of that Application and the signing of the Minutes on February 27, 2012.

31I also find that the only reasonable inference that can be drawn from the applicant’s subsequent actions is that when she read the release, she regretted signing the Minutes of Settlement because, in her view, she was giving up a lot and getting little in return. Flowing from this, she believed that she could void the Minutes by refusing to sign the release, and then proceed to litigate what she saw as her outstanding Code-related employment issues by filing a new Application with the Tribunal.

32The applicant is wrong. In the absence of a compelling reason, she cannot have the Minutes of Settlement set aside, and she certainly cannot void the Minutes by refusing to sign the release. Given my finding that she entered into Minutes with the respondent and the Union to settle all outstanding employment issues, including human rights issues, between them, the principle of finality demands that the Minutes be given effect and prevents her from litigating the settled matters. Furthermore, she cannot lead the respondent and the Union to believe that all outstanding employment issues were being resolved by entering into Minutes, and then pull “new” alleged Code violations, which are inextricably linked to the first Application and the grievance, out of her back pocket several months later. Even if the new allegations are being made in good faith, a party is normally expected to bring her entire case forward and not split it up into several pieces, adding to the cost and uncertainties associated with duplicative litigation. See Cunningham v. CUPE 4400, 2011 HRTO 658 at para. 57.

33In conclusion, I find that the Application at hand is an attempt to re-litigate the settlement of Code-related employment issues between the applicant, the respondent and the Union, and is therefore an abuse of process.

34In view of my decision on the abuse of process issue, it is not necessary to consider whether the Application should also be dismissed pursuant to pursuant to s. 45.1 of the Code.

ORDER

35The Application is dismissed.