HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dennis Lessard

Applicant

-and-

Her Majesty The Queen in Right of Ontario as represented by the Attorney General

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman
Date: November 18, 2013 Citation: 2013 HRTO 1902 Indexed as: Lessard v. Ontario (Attorney General)

APPEARANCES

Dennis Lessard, Applicant Yola Grant, Counsel

Her Majesty The Queen in Right of Ontario as represented by the Attorney General, Respondent Peter Dailleboust, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and age. The applicant, a former employee of the respondent, alleges that the respondent’s decision to transfer his work location from Kingston to Ottawa was a disguised and discriminatory decision to push him into retirement because of his age and disability.

2The hearing of this Application is scheduled for November 25 and 26, 2013. A case management conference call was held on November 13 to deal with two requests, one made by the respondent and the other by the applicant. The parties were given an opportunity to make oral submissions on the issues raised in both requests. At the conclusion of the call I made the following oral rulings:

• The anticipated evidence of the applicant’s witnesses Lillian Esarik, Linda Lessard and Nathalie Lelievre that relates to the applicant’s contention that his work could, in large part, be done remotely is admissible. The reason for this is that this anticipated evidence is supportive of the applicant’s theory of the case that the requirement for him to move to Ottawa was not a genuine operational requirement;

• The anticipated evidence of Lillian Esarik that relates to alleged pressure exercised by her manager in order to encourage her retirement is inadmissible. The reason for this is that its probative value is significantly outweighed by its prejudicial impact;

• The respondent is to produce in evidence the government’s Directive that deals with the process of disclosing to bargaining agents the business decisions that affect the employment conditions of their members;

• The respondent is to confirm that none of the records requested by the applicant relating to the business case for relocating the applicant’s position exist; and

• The respondent is to attempt to obtain and, if found, disclose the briefing note referred to in the October 17, 2011 email from Bonnie Horton to Richard Safka.

3This Interim Decision deals with one outstanding issue from the teleconference. The respondent requests that the anticipated evidence of the applicant set out in paragraph 21 of his witness statement be ruled inadmissible on the grounds that it deals with issues that were the subject of a full and final settlement of a grievance before the Grievance Settlement Board (“GSB”).

4The relevant paragraph of the applicant’s witness statement reads as follows:

The HR person (Bonnie Horton) was confrontational and did not provide a timely response to my questions which increased stress levels throughout this process. She gave a direct message to me about my lack of importance in this process by intentionally missing a critical meeting in my regard. She advised me that she would not initiate any external contacts without my permission. Later I found out that she had contacted OP Trust without my consent. Throughout this process it appeared that the employer and Ms Horton were more concerned about removing me from the position as quickly as possible rather than answering my questions. The employer further induced me towards “retirement” with a promise of enhanced severance pay that never materialized, contrary to the Estimated Financial Statement as provided by the employer.

5The relevant excerpts of the Minutes of Settlement read as follows:

In consideration of the above, the Grievor and the Union agree to release and forever discharge the Crown In Right of Ontario and the Employer, its servants, agents, directors of and from all actions, causes of actions, claims and demands of every nature and kind arising out of this grievance or circumstances and facts leading up to these grievances, including but not limited to all claims under the Public Service of Ontario Act, Human Rights Code, the Ombudsman's Act and the Employment Standards Act. The Grievor and the Union further agree that any facts related to the grievances will not form the basis of any future proceeding against the Crown In Right of Ontario, the Employer, its servants, agents, and directors.

Notwithstanding the full release set out in paragraph 3 above, the Employer acknowledges that the Grievor has a current Human Rights Complaint, HRTO File 2012-11658-1 filed against the Employer that is unrelated to the facts or circumstances of these grievances and the Employer agrees that this application remains active before the Ontario Human Rights Tribunal.

what is admissible

6I am of the view that the applicant can lead evidence on some of the matters raised in paragraph 21 of his witness statement, but not others. The reasons for this decision are set out below.

7The excerpt of the applicant’s witness statement that is contested can be broken down into two components.

8The first component is an allegation that the actions of the respondent’s HR advisor, Ms. Horton, reflected an intent on the part of the respondent to have the applicant quit his position. If the applicant can demonstrate this to be the case at the hearing, it is evidence that may be supportive of his theory that he was being pressured to leave because of his age and disability. The applicant made this allegation when he filed his Application with the Tribunal, and before the GSB grievances were settled. The second paragraph of the final page of the narrative appended to his Application sets out this assertion.

9When the parties settled the grievance before the GSB, they explicitly acknowledged that the scope of the settlement did not extend to the pending Application before this Tribunal. I have to assume that when they reached that agreement, both parties were cognisant of the content of the HRTO Application, including the allegation set out in the preceding paragraph.

10Furthermore, the scope of the GSB settlement extends to “…the circumstances and facts leading up to the grievances” and to “…any facts related to the grievances”. However, the substance of this allegation has nothing to do with the subject matter of the grievances before the GSB.

11As the respondent was aware of this allegation before the grievances were settled, as its substance has nothing to do with the subject matter of the GSB grievances, and as the parties acknowledged that the Tribunal Application was exempt from the settlement, I conclude that this allegation is not caught by the scope of the GSB settlement. Evidence relating to it is therefore admissible.

what is not admissible

12The second component of the contested paragraph is the applicant’s claim that he was induced to retire by the expectation of enhanced severance pay. It is alleged that the respondent provided him with inaccurate information as to what he was entitled to and that he then made his decision to retire based on that inaccurate information.

13Unlike the previous allegation, the applicant did not plead this allegation in his Application or Reply.

14In Interim Decision 2012 HRTO 1881, the Tribunal rejected a request by the respondent to defer considering this Application pending the outcome of the GSB process. The basis of that Interim Decision was that the issues in this Application and the issues raised by the grievances before the GSB were different.

15What I have to determine is whether the settlement of the GSB grievances appropriately dealt with the substance of this allegation, such that s. 45.1 of the Code applies. If that is the case then this allegation is dismissed.

16In s. 45.1 the Code provides that the Tribunal “may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.”

17There are two issues to be determined here: whether the settlement of the GSB grievances constituted a proceeding within the meaning of s. 45.1 and, if it did, whether the settlement itself appropriately dealt with the substance of this allegation.

18The Tribunal has accepted that where a proceeding before another adjudicative body is settled, the settlement can constitute a proceeding for the purposes of s. 45.1. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal noted at para. 37:

…the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation.

19In this case the parties to the grievances and the applicant signed the Minutes of Settlement, and in doing so indicated their willingness to forgo an arbitration hearing in order to resolve the grievances. In light of their actions and the principles outlined in Dunn, I conclude that the settlement amounts to a proceeding for the purposes of s. 45.1.

20The subject matter of the grievances that were settled included whether the applicant was entitled to enhanced severance pay, whether his surplus notice should be rescinded and whether he should be reinstated. The question of whether the applicant was induced to retire because of wrong representations about his entitlement to enhanced severance pay flows directly from “the circumstances and facts leading up to the grievances”. This is because the surplus notice was only issued because he opted to retire rather than move to Ottawa.

21The current Application is exempted from the bar to further litigation in the Minutes of Settlement. However, this exemption is qualified by the mutual understanding of the parties that the Tribunal Application “is unrelated to the facts or circumstances of these grievances”. By pleading the allegation that he was wrongly induced to retire because of what the respondent told him about his severance pay entitlements, the applicant is seeking to introduce facts that are related to the facts or circumstances of the settled grievances. This is not what the parties to the GSB Minutes of Settlement agreed to. Implicit in their agreement is an understanding that the scope of this Application would not subsequently be expanded through amendments that are barred by virtue of the final release in the Minutes of Settlement because they overlap with the facts and circumstances of the grievances.

22For these reasons I find that s. 45.1 of the Code applies to the allegation that the applicant was induced to retire through the respondent’s representations regarding his severance pay. The result of this is that this allegation is dismissed and the applicant will not be allowed to lead evidence on this point at the hearing.

order

23The Tribunal orders as follows:

• The anticipated evidence of the applicant’s witnesses Lillian Esarik, Linda Lessard and Nathalie Lelievre that relates to the applicant’s contention that his work could, in large part, be done remotely is admissible;

• The anticipated evidence of Lillian Esarik that relates to alleged pressure exercised by her manager in order to encourage her retirement is inadmissible;

• The respondent is to produce in evidence the government’s Directive that deals with the process of disclosing to bargaining agents the business decisions that affect the employment conditions of their members;

• The respondent is to confirm that none of the records requested by the applicant relating to the business case for relocating the applicant’s position exist;

• The respondent is to attempt to obtain and, if found, disclose the briefing note referred to in the October 17, 2011 email from Bonnie Horton to Richard Safka; and

• The applicant’s allegation that he was induced to retire by the respondent’s representations as to his entitlement to enhanced severance pay is dismissed and the applicant will not be allowed to lead evidence on this point at the hearing.