Mustapha Kassab v. UPS SCS Inc., 2013 HRTO 1431

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mustapha Kassab Applicant

-and-

UPS SCS Inc., Chris Dunn, Michael Nason, Derik Campbell, Dennis Curnow, Susan Cameron and Wiona Vello Respondents

DECISION

Adjudicator: Kathleen Martin
Date: August 21, 2013
Citation: 2013 HRTO 1431
Indexed as: Kassab v. UPS SCS Inc.

APPEARANCES

Mustapha Kassab, Applicant Self-represented

UPS SCS Inc., Chris Dunn, Michael Nason, Derik Campbell, Dennis Curnow, Susan Cameron and Wiona Vello, Respondents Laura Cassiani, Counsel

1This is an Application for Contravention of Settlement filed on September 24, 2012, pursuant to section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application relates to Minutes of Settlement which the applicant and named respondents entered into on August 24, 2012 (the “MOS”).

2In the Application, the applicant states that he does not agree with what was going on for the duration of the mediation. Among other things, the applicant raises a concern about a monetary deduction and alleges that he wants to “takeout” his signature from the voluntarily resignation document as he is “losing too much”, the mediator did not explain it to him and he was under “high stress and pressure”. The applicant states that he is looking for a “new mediation” and sets out what he is seeking during that mediation.

3A Response was filed on October 2, 2012, asking that the Application be dismissed as there has been compliance with the MOS, and in any event, the applicant has not pled any facts to support the allegations of duress.

4By Case Assessment Direction dated October 12, 2012, the Tribunal sought clarification of the alleged contravention and the basis for filing against an additional individual who was not a party to the original MOS. Submissions were filed by the parties.

5By Interim Decision dated December 6, 2012, the Tribunal determined that the additional individual was not a proper party to the Application and directed that a two-hour hearing by conference call be scheduled for the purpose of hearing submissions on the issues set out in the Application and Response: 2012 HRTO 2297. The Tribunal stated that the applicant should be prepared to proceed first and make submissions as about why he believes that there has been a contravention, and if he takes the position that the MOS should be set aside whether because of duress or otherwise, provide full submissions in support along with any documents and case law. The Tribunal further directed that the parties should file with the Tribunal submissions setting out any additional facts, documents and cases they intend to rely on at the hearing no later than 14 days after the date of the Case Assessment Direction.

6Prior to the hearing, the applicant requested an English/Arabic interpreter and the right to participate in person for reasons that were particularized. The Tribunal granted both requests.

7On May 30, 2013, an in-person hearing was held to determine the issues in the Application and Response, as well as a Request for Order During Proceeding filed by the applicant seeking the addition of a party to the Application (the same individual who was found not to be a proper party in the Interim Decision dated December 6, 2012). At the applicant’s request, the hearing was interpreted throughout, with the exception of two occasions when the applicant stated that he preferred to provide his submissions in English.

8During the hearing, the applicant clarified that there had been no contravention of settlement and that the MOS had been implemented. Instead, the applicant submitted that his position was that the MOS should be set aside for reasons outlined in his written submissions prior to and during the hearing. In response, the respondents submitted that although their initial position was that the Tribunal had no jurisdiction to determine this latter claim, given that they were at the hearing, they were content to deal with the applicant’s claim and believed it to be in all parties’ interests for the Tribunal to determine the issue that remained (i.e. whether the MOS should be set aside because of duress or otherwise).

9While in the normal course, the applicant may have alleged that the MOS should be set aside through the filing of a different form than that filed (for example, a new application where the applicant would have to argue why the settlement does not bar him from proceeding), in all the circumstances, given the parties’ positions and the history of the proceeding where the issue had been identified and fully addressed in the parties’ written submissions, I found it fair, just and expeditious to hear the remaining issue in the dispute. In the result, the hearing proceeded on the basis of the Tribunal hearing submissions on whether the MOS should be set aside.

10I am not satisfied that there is any basis for setting aside the MOS and the related documentation such as the Form 25. As a result, the request for a new mediation or the alternative remedy of ordering additional damages is denied. My reasons follow.

BACKGROUND FACTS

11While I did not hear evidence in the hearing, the background facts were not in dispute. The following summary is based on the facts expressly agreed to and some additional facts asserted by the respondents which the applicant did not dispute.

12The applicant filed an application at the Tribunal (File 2011-10480-I). The parties voluntarily agreed to mediation. On August 24, 2012, the parties entered into the MOS of File 2011-10480-I following a mediation facilitated by a Tribunal member. The MOS were between the applicant and the named respondents in the Application which was being settled. The named respondents are the same respondents identified as respondents in this proceeding.

13Among other things, the MOS provided that the applicant would voluntarily resign his employment and receive a monetary payment. Further, the MOS provided that the applicant fully understands the terms of the MOS, has had the opportunity to obtain independent legal advice prior to executing the documents and acknowledges and agrees that he has signed the documents voluntarily, without constraint and accepts the consideration offered for the purpose of making full and final compromise and settlement of all claims. The MOS was accompanied by a Full and Final Release which was also signed by the applicant and witnessed by his spouse (the terms of which extended to all claims relating to his employment and the cessation of employment). Further a letter of resignation was signed by the applicant stating that he is voluntarily resigning his employment effective immediately.

14The respondents submit and the applicant did not dispute that the offer to settle was not time-limited when presented and the applicant did not request additional time.

15The parties signed off on a Settlement (Form 25) on August 24, 2012.

16On August 27, 2012, the Tribunal wrote to the parties advising that the Form 25 indicating a full settlement had been received and that given the parties’ agreement, the Application is finally disposed of and the file has been closed.

17At some point between August 24, 2012 and September 10, 2012, the applicant attempted to contact the respondent to discuss the terms of settlement and requested a meeting.

18On September 10, 2012, the respondents’ counsel sent a letter to the applicant by overnight courier enclosing the cheque for the monetary amount indicated in the MOS, a letter of reference, a cheque for outstanding vacation pay and a record of employment. The letter indicated that the matter is now concluded, and as a result, there is no purpose for a meeting to discuss the matter.

19On September 12, 2012, the applicant cashed the cheque for the monetary amount indicated in the MOS.

20On or September 19, 2012, the applicant delivered the Application alleging a contravention of settlement to the Tribunal but did not copy the respondents. On September 24, 2012, the applicant filed the Application, copying the respondents.

The Parties’ Submissions

21The applicant filed submissions prior to and made additional submissions at the hearing.

22In written submissions dated November 14, 2012, the applicant stated that he was put under pressure, stress and duress to accept what the respondents offered through the mediator and that the offer he accepted was “very low” regarding what the employer owed him. The applicant refers to a misunderstanding that he had about employment insurance repayment and that he did not have a lawyer or legal advisor.

23At the hearing, the applicant repeated some of these submissions and raised for the first time that he was taking medication that “affected” him. The applicant clarified that there was a misunderstanding at the mediation since when he saw the “paper” (referring to the MOS), the amount was different from what he expected but because of the pressures he was under (i.e. during that time he had nothing to live on) he signed it. The applicant states that later when he was at home, he thought about it and saw that he had lost a lot in signing the MOS that the respondents should have paid to him.

24The respondents submit that there is no legal or factual foundation to set aside the settlement between the parties and doing so in the circumstances would undermine the principle of finality and amount to an abuse of process. The respondents submit that the applicant has provided no submissions on which the Tribunal could reasonably conclude that the MOS should be aside because of illegitimate pressure and/or duress. The respondents further submit that the respondents had no knowledge of the applicant being on medication and that the applicant has not provided any particulars of the details of medication and how it impacted on the mediation. The respondents submit that the parties were in separate rooms throughout and that the negotiation occurred through the mediator and that the mediator’s role is not to provide legal advice but just to facilitate the settlement. The respondents submit the Application should be dismissed and that the applicant should be ordered to pay them damages given that they had to go through the time and expense of having to defend this Application where they had a final and binding agreement.

25In his reply, I specifically asked the applicant to address the respondents’ submissions, including that he had provided no particulars in respect of his claim about the medication that he was on. The applicant stated that he was still seeing a psychiatrist that the Tribunal could contact but did not explain how his seeing a psychiatrist related to the mediation beyond what he had already stated. I explained to the applicant that the Tribunal does not contact potential witnesses and that it is a party’s responsibility to bring forward evidence and make submissions to the Tribunal. I told the applicant that he had an opportunity now to make submissions to respond to what the respondents said in their submissions. The applicant stated that he had nothing further that he would like to say.

26Following the hearing, on June 9, 2013, the applicant wrote to the Tribunal stating that he was under medication from his psychiatrist because of the pressure and stress from the respondents but does not have a medical report to prove that, although he also stated that his psychiatrist informed him that he would issue a report upon written request from the Tribunal. The applicant stated that he did not want any medical reports or the name of his psychiatrist to be shared with the respondents.

DECISION

27Section 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.

28The 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 Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655. I find that same principles and approach should apply where, as in this case, the applicant is seeking to set aside MOS and continue with the original application by having a “new mediation”, subject to considering whether there are any compelling reasons to set aside the MOS.

29In this case, the applicant does not dispute that he signed MOS and a Full and Final Release covering the subject matter of the Application. Instead, his claim is based on the submission that he has alleged circumstances which justify the setting aside of the MOS. In this respect, the applicant relies on what went on in the mediation including allegations that he was under duress, pressure and stress; that he misunderstood the monetary amount; and that he was on medication that affected him.

30Even if I accept the applicant’s submissions about the circumstances surrounding the signing of the MOS and related documents, I do not find that he has satisfied me that there is any compelling reason not to find that he is bound by the MOS and the Full and Final Release.

31A party alleging duress has the onus of establishing that the circumstances relied on amount to duress. The Tribunal has stated that the legal threshold is an exacting one, which recognizes the strong public interest in the principle of finality. See, for example, Bard v. Heenan Blaikie LLP, 2011 HRTO 1706.

32The Ontario Court of Appeal described the elements of duress in Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 at paras. 8-9:

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 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. C.A.), at para. 89.

33In this case, while the applicant refers to being under pressure and stress during the mediation process, it is apparent that he is referring to financial pressure. The applicant states that he had no money to live on and that is why he signed it.

34This is not an atypical situation. Parties entering into settlements of outstanding litigation often face pressures particularly of a financial nature. However, as the Tribunal has stated previously difficult financial circumstances alone are not enough to meet the threshold set by the Court of Appeal (Bard at para. 18 and Morris v. Bemac Autobody, 2011 HRTO 762 at para 38).

35I accept that the applicant had no money to live on and thus faced difficult financial pressures having lost his employment. However, the applicant has not described any circumstances from which I could conclude that the pressures he faced were equivalent to a threat or coercion of the will that warrants setting aside the MOS. Instead he describes that when he received the MOS, he identified that it was not for the amount that he originally thought but decided to sign it because of his economic situation. The applicant does not dispute that the MOS was not time-limited. In these circumstances, it appears clear that the applicant assessed the situation and made a voluntary choice to accept the amount offered and sign the MOS.

36I also find there is no merit to the claim that the applicant misunderstood the MOS. While at one point the applicant stated that the mediator did not explain things to him, what is clear from the applicant’s more fulsome submissions at the hearing is that any misunderstanding related only to the monetary amount in question (and the treatment of employment insurance repayment) and this misunderstanding was clarified when he received the MOS and before he signed it. Further and notably, the applicant has not suggested that at any time he misunderstood any of the other aspects of the MOS, including the full and final nature of the MOS and the Full and Final Release.

37Finally, I do not find that the applicant’s assertion that he was under medication at the time which “affected him” is sufficient to persuade me that the MOS should be set aside. I have concerns about the credibility of this claim insofar as it was raised for the first time at the hearing, notwithstanding that the applicant had several opportunities to particularize his reasons for asking for a new mediation (which would require that the MOS be set aside) and in fact did so in writing before the hearing without mentioning this assertion. However, even if I accept this assertion, the sparse description given does not persuade me that it provides any justification for setting aside the MOS.

38In order to set aside MOS based on an individual’s mental health, I would have be satisfied that the applicant’s condition resulted in a form of incapacity or provided an otherwise compelling reason to set aside MOS. There is inadequate information provided by the applicant to permit any reasonable inference about the impact of any medication on the applicant. The applicant has not identified the medication, has not described in any detail how it impacted on his mental state that day, and has not responded to the respondents’ submission that they had no knowledge that this was the case. These deficiencies were highlighted in the hearing by the respondents and as set out in paragraph 25 above, the applicant elected not to elaborate on his position.

39The applicant has, however, requested again after the hearing that the Tribunal contact his psychiatrist. As stated at the hearing, this is not the role of the Tribunal. It is a party’s responsibility to bring forward evidence and make submissions to the Tribunal. The applicant was afforded a full opportunity to do so both before and at the hearing. The applicant has provided no explanation as to why he did not when directed to do so either in advance of or at the time of the hearing. In the circumstances, the applicant’s request that the Tribunal contact his psychiatrist is denied. Further, while not expressly requested by the applicant, having regard to all the circumstances, I do not find it appropriate to make any further order permitting the applicant to file any additional information.

40Looking at the circumstances, there are no factors that would justify the setting aside of the MOS and the ordering of a new mediation. I do not find that the applicant has established that he was under duress, lacked capacity or has otherwise established that there are any compelling reasons for setting aside the MOS and ordering a new mediation. To allow the request made in light of the full and final settlement reached and the execution of a Form 25 would be an abuse of the Tribunal’s process.

41The Application is therefore dismissed.

42Having regard to this Decision, I do not find it necessary to consider the applicant’s Request to add a party to the proceeding.

43In addition, the respondents’ request for damages is denied. While I can appreciate the frustration of the respondents in having to defend a matter which has been fully and finally settled, it is not apparent to me that the Tribunal has jurisdiction to order such damages in the absence of finding a contravention. In any event, even if the Tribunal did have jurisdiction, I would not be inclined to make such an order in the circumstances of this case.