Daher v. Safran Electronics Canada, 2013 HRTO 467

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexandre Daher Applicant

-and-

Safran Electronics Canada Respondent

DECISION

Adjudicator: Paul Aterman Date: March 19, 2013 Citation: 2013 HRTO 467 Indexed as: Daher v. Safran Electronics Canada

APPEARANCES

Alexandre Daher, Applicant Self-represented

Safran Electronics Canada, Respondent John Bruce, Counsel

Introduction

1The applicant was employed by the respondent, but his employment was terminated in June 2010. He sued the respondent for wrongful dismissal. The lawsuit was settled and on August 31, 2010 the parties concluded Minutes of Settlement and a Release. The Minutes of Settlement preclude the applicant from pursuing any remedies in relation to the termination of his employment, including bringing an Application before the Tribunal.

2Despite this, the applicant filed this Application on August 10, 2012 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 place of origin and citizenship.

3A hearing was held on March 11, 2013 to determine whether the Application should be dismissed because it is an abuse of process to initiate an Application when the parties have settled the same issues that are the subject matter of the Application. The parties were also asked to make submissions on whether the Application should be dismissed for delay.

4For the reasons set out below, the Application is dismissed.

submissions

5The applicant submits that it would not be an abuse of process for the Application to proceed because he claims that the respondent breached the terms of the settlement. Specifically, he maintains that the respondent breached the terms of settlement by issuing him a Record of Employment that was inaccurate in that it incorrectly stated his job title and the amounts of money he earned. He also argues that the respondent issued him an incorrect T4 tax form and that this was a breach of settlement.

6The applicant indicated during the hearing that he pursued his concerns regarding the Record of Employment form with his lawyer, but ultimately decided to do nothing further to rectify this. Notwithstanding this decision, he argues that these failures on the part of the respondent amount to a breach of settlement because they contravene the mutual non-disparagement clause at paragraph 7 of the Minutes.

7In relation to delay the applicant argues that various medical problems that he and his family were suffering from after his termination, as well as his preoccupation with succeeding in a new job, are the reasons why he did not initiate an Application. He argues that he filed a complaint in the federal human rights system, and that this indicates his intent to pursue this Application. Once he was informed that his concerns fell within the jurisdiction of this Tribunal, rather than in the federal system, he initiated an Application.

8The respondent denies any breach of the terms of settlement. It argues that the only obligations of the employer were to make payments to the applicant and to issue a Record of Employment which contains the code “K” as the reason for issuing the form, specifying that it was issued on grounds of mutual incompatibility. The respondent maintains that it complied with those conditions. It adds that even if there were a breach, the applicant’s recourse would be to bring an action to enforce compliance with the Minutes of Settlement.

9In relation to delay, the respondent argues that the applicant has not advanced reasons that would show the delay was incurred in good faith. Further it maintains that it would be prejudiced in terms of the cost and effort of having to defend itself against the applicant’s allegations. It adds that the applicant makes damaging allegations against a number of individuals and that they would be personally prejudiced by the stress of having to address the applicant’s allegations.

analysis and decision

10The Tribunal has established that where a lawsuit has been settled by a valid and binding agreement, and the agreement is a complete settlement of the issues between the parties, including the human rights issues, then allowing a subsequent Application to go forward would be an abuse of process (see: Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 and Corbiere v. University of Sudbury, 2012 HRTO 309 regarding prior settlements of the subject-matter of a Tribunal application).

11There is some support for the respondent’s position that even if there was a breach of settlement the appropriate redress is to bring an application or action in the forum in which the settlement was entered into (see, for example, Hazel v. Ainsworth Engineered, 2009 HRTO 2180 at para. 44).

12It is unnecessary for me to decide this issue because it is clear on the evidence that there has been no breach of settlement here. The applicant admitted during the hearing that he had received the payments from the respondent that were required by the Minutes of Settlement. He also admitted having received a Record of Employment with the code “K” as the reason for its issuance. These are the only obligations that the Minutes impose upon the respondent. They have been met. Assuming, without deciding, that the respondent provided incorrect information about the applicant’s job title and income on either or both of the Record of Employment and T4 tax form, this would not amount to a breach of the non-disparagement clause. Rather, these are errors of an administrative nature.

13I conclude from this that the respondent complied with the terms of the Minutes of Settlement. The settlement is binding on the parties. It expressly precludes the applicant from pursuing a remedy under the Code. In light of this, it would be an abuse of process to allow this Application to continue.

14Having arrived at this conclusion, it is not necessary for me to determine the issue of delay.

order

15The Application is dismissed as an abuse of process.