Tyler Knipfel v. The Regional Municipality of York, 2013 HRTO 1978

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tyler Knipfel Applicant

-and-

The Regional Municipality of York Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price Date: November 29, 2013 Citation: 2013 HRTO 1978 Indexed as: Knipfel v. York (Regional Municipality)

WRITTEN SUBMISSIONS

Tyler Knipfel, Applicant Self-represented

Regional Municipality of York, Respondent Stephen Maio, Counsel

1On June 24, 2013, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging that the respondent discriminated against him with respect to employment on the basis of disability. In particular, the applicant alleges that the respondent, his former employer, infringed his rights under the Code by giving the applicant a negative employment reference in April and/or May 2013.

2In its Response to the Application, the respondent made a request for early dismissal of the Application on the basis that the applicant had signed a full and final release with respect to the issues in the Application and/or on the basis that the Tribunal lacks jurisdiction over the issues in the Application.

3The applicant was given an opportunity to respond to the respondent's request for early dismissal and did so.

Background

4The applicant was employed by the respondent as a paramedic until his employment was terminated by the respondent in August 2012.

5The applicant's trade union filed a grievance on the applicant's behalf in respect of the termination and referred it to arbitration.

6In addition, the applicant filed a s. 34 Application with the Tribunal alleging that the respondent employer had infringed his rights under the Code.

7In March 2013, the applicant, his trade union and the respondent employer entered into Minutes of Settlement resolving both the grievance and the human rights Application.

8In the March 2013 Minutes of Settlement, the applicant agreed that the settlement constituted "full and final settlement of any existing, planned or possible complaint(s) against, including any outstanding or contemplated Human Rights Tribunal application, the Employer or its representatives." In addition, as part of the Minutes of Settlement, the applicant signed a Release, in which he agreed that the consideration received pursuant to the Minutes of Settlement constituted "full and final settlement of any existing, planned or possible complaint(s) against [the respondent] under the Ontario Human Rights Code up to the date of execution of the Release, arising out of or in respect to his employment."

Request to Dismiss on Basis of Full and Final Release

9The respondent's request that the Application be dismissed on the basis of the full and final release signed by the applicant on March 6, 2013 is denied.

10In a number of decisions, the 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: Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655; Luo v. Dell Canada, 2010 HRTO 879.

11In this case, however, I am not persuaded that the full and final release signed by the applicant in March 2013 prevents him from pursuing this Application, which is based on the events of April and/or May 2013.

12In this Application, the applicant claims that the respondent treated him in a disadvantageous manner because of his disability, and thereby discriminated against him, when it gave him a negative employment reference in April and/or May 2013. I do not see how the full and final release that the applicant signed in March 2013 prevents him from pursuing this claim. It is well-established that, although a person may agree not to proceed with a human rights claim based on past events, she cannot contractually agree to put herself beyond the reach of the Code's protection in future: Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145 at 158; and any contract that purports to have this effect is void as contrary to public policy: Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 at 213-214. See also Perricone, supra, at para. 73-74; Brown v. Primary Response Inc., 2012 HRTO 1827 at para. 14.

13In this case, the applicant is not claiming that the respondent infringed his rights under the Code at any point prior to the signing of the March 2013 Minutes of Settlement (i.e. "up to the date of execution of the Release", the specific wording in the Minutes of Settlement). Rather, the Application relates to alleged breaches of the Code that occurred after the date of the execution of the Release. Accordingly, the plain wording of the Release signed by the applicant does not appear to prevent him from pursuing the instant Application. In any event, even if the Release did purport to restrict the applicant from pursuing violations of his Code rights that occurred after the Release was signed, pursuant to the Supreme Court of Canada's decision in Etobicoke, above, it would be void in that respect as being contrary to public policy.

14Accordingly, the respondent's Request that the April and/or May 2013 allegations be dismissed on the basis of the full and final release signed by the applicant in March 2013 is denied.

Whether March 2013 Minutes of Settlement deprive the Tribunal of Jurisdiction over the Application

15I must also dismiss the respondent's request that the Application be dismissed as being outside the Tribunal's jurisdiction.

16The respondent submits that, in this Application, the applicant is really complaining that the respondent breached a term of the March 2013 Minutes of Settlement requiring the respondent to respond to requests for employment references concerning the applicant by confirming the applicant's position, responsibilities and dates of employment only.

17The March 2013 Minutes of Settlement between the applicant, his trade union and the respondent contained the provision, "Arbitrator Elaine Newman remains seized." (The grievance had been referred to arbitration before Arbitrator Newman, although it appears that it may have been settled prior to arbitration.)

18The respondent submits that the parties' agreement to have Elaine Newman "remain seized" deprives the Tribunal of jurisdiction to hear and determine the instant Application. In particular, the respondent submits that the Tribunal lacks jurisdiction to consider whether there has been a breach of the terms of the March 2013 settlement because the parties agreed that the arbitrator would be seized to address any issues arising out of the implementation of the terms of the settlement. That said, there is no suggestion that a proceeding has been initiated before the labour arbitrator with respect to the alleged breach of the Minutes of Settlement. Moreover, it is my understanding that the applicant himself cannot initiate such a proceeding before the labour arbitrator.

19At the outset, I would note that, although in his Application the applicant contends that the respondent discriminated against him by giving him a negative employment reference, and further that the respondent's actions breached the March 2013 Minutes of Settlement, it is not clear that breach of settlement is an issue that is before the Tribunal in the present Application. In this regard, I note that the applicant has not filed a Contravention of Settlement Application (Form 18) with the Tribunal. Rather, he has filed an Application under s.34 of the Code (Form 1).

20In any event, assuming without finding that breach of settlement is an issue in the present Application, I cannot accept the respondent's argument that the Tribunal lacks jurisdiction to determine whether the respondent contravened the March 2013 Minutes of Settlement because of the wording of the settlement.

21The Tribunal's jurisdiction to hear and determine human rights Applications comes from its enabling legislation, namely, the Code. The parties can neither limit nor expand the Tribunal's statutory jurisdiction by their agreement. As observed by the Supreme Court of Canada in Etobicoke, above, at p. 214, "the Ontario Human Rights Code has been enacted by the Legislature of the Province of Ontario for the benefit of the community at large and of its individual members and clearly falls within that category of enactment which may not be waived or varied by private contract." Nor can the Tribunal itself decline to determine a matter that falls within its jurisdiction, unless given the power to do so under its governing legislation: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, at para. 44.

22Section 45.9 of the Code is the provision that establishes the Tribunal's jurisdiction to determine contravention of settlement applications. That provision states that, if a settlement of an application made under s.34 or s.35 of the Code is agreed to in writing and signed by the parties, then a party who believes that another party has contravened the settlement may make an application to the Tribunal to determine whether the settlement has been contravened and, if so, to make an order to remedy the contravention.

23In this case, the applicant filed a human rights Application against the respondent in 2012 pursuant to s.34 of the Code. The respondent submits, and I agree, that that Application was settled by the parties pursuant to written Minutes of Settlement that were signed by the parties in March 2013. Accordingly, pursuant to the clear wording of s.45.9 of the Code, assuming without finding that the applicant did make a timely Application to the Tribunal alleging contravention of settlement, the Tribunal would have jurisdiction to determine whether the settlement had been contravened and, if so, to make an order to remedy the contravention. I do not agree with the respondent's submission that the applicant "ceded jurisdiction" of any issues relating to contravention of the settlement to the appointed labour arbitrator. As noted above, the parties cannot, by their agreement, deprive the Tribunal of its statutory jurisdiction.

24In coming to this conclusion, I make no determination as to Arbitrator Newman's jurisdiction to determine whether the Minutes of Settlement were breached, if a proceeding in that regard were initiated before her. However, this jurisdiction, if it exists, must be concurrent to the Tribunal's jurisdiction over the issue.

25Finally, I would add that nothing in this Interim Decision should be interpreted as limiting the respondent's ability to rely on the March 2013 Minutes of Settlement to argue that the employment reference that the respondent provided for the applicant was not discriminatory.

26The respondent's Request that the Application be dismissed as falling outside the Tribunal's jurisdiction is denied.

DIRECTION

27The respondent's Request for early dismissal of the Application on the basis that it falls outside of the Tribunal's jurisdiction and/or because of the full and final Release signed by the applicant in March 2013 is denied. The Application will continue to be processed by the Tribunal.