Johnston v. P & H Foods Division of Parrish & Heimbecker, 2013 HRTO 589

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amanda Johnston

Applicant

-and-

P & H Foods Division of Parrish & Heimbecker Limited, Reg Philips, Tracy Vanness-Brzoska, Craig Shaw, Luc Lacelle and United Food & Commercial Workers Canada, Locals 175 & 633

Respondents

DECISION

Adjudicator: Leslie Reaume
Date: April 10, 2013
Citation: 2013 HRTO 589
Indexed as: Johnston v. P & H Foods Division of Parrish & Heimbecker

APPEARANCES

Amanda Johnston, Applicant Self-represented

P & H Foods Division of Parrish & Heimbecker Limited, Reg Philips, Tracy Vanness-Brozoska, Craig Shaw and Luc Lacelle, Respondents Kathryn J. Bird, Counsel

United Food & Commercial Workers Canada Locals 175 & 633, Respondents Catherine Davis, 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 reprisal and discrimination with respect to employment because of sex. The Tribunal issued a Registrar’s Letter dated September 5, 2012, setting a half-day teleconference to give the parties an opportunity to make submissions on the issue of abuse of process.

2The applicant was terminated from her employment in early July 2011. A grievance was filed on her behalf by her union, the United Food & Commercial Workers Canada Locals 175 & 633 (“union”). The union, the applicant, and the employer signed a settlement agreement (“agreement”) dated July 15, 2011, a copy of which was filed with the Tribunal by the union.

3At the same time, the applicant signed a release which contains a provision releasing the employer, employees, the union and union representatives from any obligations they may have toward the applicant under human rights, pay equity and employment standards legislation. The applicant also acknowledged that she had an opportunity to receive independent legal advice before signing the release.

4There is no dispute that the organizational and individual respondents named in the Application are the applicant’s former employer, her union, and current or former employees and union members.

5The applicant alleges that she received no real assistance from the union during the meeting which gave rise to the agreement dated July 15, 2011. The applicant argued during oral submissions that she signed the minutes on July 15, 2011 because she was upset and wanted to bring an end to the settlement meeting. The applicant argued that she felt she had no other choice but to sign the documents which were put before her.

6As I understand her allegations, the applicant came to regret signing the agreement of July 15, 2011. She attempted to bring her concerns directly to the attention of her former employer in the hope that they would be investigated and her employment would be reinstated. The applicant alleges that after the settlement of her grievance, she met with representatives of her former employer and complained to them about the circumstances leading up to her termination. She alleges that she was told that steps would be taken to investigate her concerns.

Analysis

7The Tribunal has the jurisdiction to consider on a preliminary basis whether or not some or all of an application ought to be dismissed based on abuse of process. Section 23(1) 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 as it considers proper to prevent abuse of its processes.

8The 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. See Campbell v. Toronto District School Board, 2008 HRTO 62, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.

9The Code does not explicitly bar applications where an applicant has executed a release in favour of the respondents. See Bielman v. Casino Niagara, 2009 HRTO 123. However, the Tribunal’s jurisprudence establishes that proceeding with an application may constitute an abuse of process when the parties have previously settled the subject-matter of the Application. See Campbell, supra; Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151; Zu v. Hamilton (City), 2010 HRTO 2461; and Holowka v. Ontario Nurses Association, 2010 HRTO 2171. As recognized by the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at para. 35, “[t]here is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever form it is brought, the matter is at an end.”

10There is no evidence that the applicant lacked the capacity to understand the terms of the minutes of settlement which clearly encompass both the respondents to this Application and any obligations owed to the applicant pursuant to human rights legislation. The agreement covers the circumstances leading up to the applicant’s termination. There would need to be a compelling reason to permit this Application to proceed given the settlement agreed to by the parties.

11When she was asked why she signed the settlement agreement, the applicant responded that she was upset and wanted to “get out of there”. The applicant argued that at the time she felt signing the agreement was her only option. The fact that the applicant felt pressure and now regrets signing the agreement is very unfortunate and I have no doubt that the applicant is sincere when she describes how she has suffered from the long-term effects of her termination. However, the applicant is unable to point to evidence which could substantiate a claim for duress or any other basis for interfering with the settlement agreement.

12Accordingly, I find that it would constitute an abuse of process to permit the Application to continue in the face of the settlement agreement.

13I note that the applicant appears to be relying, to some extent, on her post-termination interactions with the respondents as the basis for part of her claim of discrimination. She alleges that she contacted her former employer in November, 2011 and that a company representative agreed to meet with her. She met with company representatives on December 12, 2011, and alleges she was told that there would be an investigation into her concerns which the applicant alleges has not occurred.

14The problem with the applicant’s reliance on post-termination events is that while she alleges that her treatment was unfair, there is no connection to a prohibited ground under the Code which would explain, in whole or in part, the conduct of the former employer. Clearly the applicant sees this as a continuation of the events which led to her termination, however, there is no evidence that she can point to which would substantiate that the respondent employer failed to follow through on a post-settlement investigation because of the applicant’s sex. As a result, the Application has no reasonable prospect of success.

15Accordingly, the Application is dismissed.