Zehr v. London District Catholic School Board, 2014 HRTO 1300

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathryn Zehr

Applicant

-and-

London District Catholic School Board

Respondent

-and-

Canadian Union of Public Employees, Local 4186

Affected Party

DECISION

Adjudicator: Mark Hart

Date: September 3, 2014

Citation: 2014 HRTO 1300

Indexed as: Zehr v. London District Catholic School Board

APPEARANCES

Kathryn Zehr, Applicant

Juliana Montgomery, Representative

London District Catholic School Board, Respondent

Christopher White, Counsel

Canadian Union of Public Employees, Local 4186, Affected Party

Brian Humphrey, Representative

1This is an Application filed February 11, 2014, alleging discrimination with respect to employment because of race, colour, place of origin, ethnic origin, gender identity and gender expression contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Decision is to address the issue of whether the Application should be dismissed as an abuse of process on the basis of a Memorandum of Agreement dated September 19, 2013 and signed by the applicant. While the Tribunal also asked the parties to address the issue of whether the Application should be dismissed pursuant to s. 45.1 of the Code and the respondent raised the issue of delay, it is not necessary to deal with these issues for the purpose of this Decision.

3A teleconference hearing was held on June 11, 2014, to hear the parties’ oral submissions on the issues raised. By Case Assessment Direction dated March 18, 2014, the parties were directed to file copies of any documents they intended to rely upon for the purpose of the teleconference hearing no later than 14 days prior to the hearing.

4The applicant was employed as an education assistant with the respondent school board commencing in 1999. On January 10, 2013, the applicant had a meeting with her Vice-Principal at which she alleges that a racial comment was made. On February 5, 2013, the applicant filed her first grievance under the collective agreement, alleging a failure to provide her with a workplace free from discrimination and harassment.

5On February 13, 2013, the applicant also filed an internal complaint with the respondent, raising the discriminatory comment and other concerns. This internal complaint was investigated by the respondent and was found to be unsubstantiated. On April 9, 2013, the respondent issued a letter confirming its findings and the basis for its findings. As a result of the respondent’s findings, a three-day suspension was imposed upon the applicant on the basis that her complaint was unfounded and meant to discredit her supervisor and deflect from her poor work performance, and on the basis that the applicant had made a reckless statement that had significantly impacted on her relationship with the teachers and other education assistants and the reputation of the Vice-Principal. The applicant also was transferred to another school within the respondent board. On April 23, 2013, the applicant filed her second grievance under the collective agreement, challenging her suspension and transfer.

6On August 29, 2013, the applicant’s employment was terminated for cause as a result of an allegation that the applicant had improperly retained funds collected from basketball team members for the purchase of team jackets. On August 29, 2013, the applicant filed her third grievance under the collective agreement alleging unjust termination.

7A mediation meeting regarding the three grievances filed by the applicant was held on September 19, 2013. The mediation was facilitated by an experienced labour mediator, and the applicant was represented by her union during the mediation process. As a result of the mediation, the parties entered into a Memorandum of Agreement dated September 19, 2013. Under the terms of the Memorandum of Agreement, the applicant’s termination notice was rescinded and the applicant agreed to resign from her employment with the respondent school board. The respondent agreed to seal the applicant’s file, and also provided her with a letter of reference. The respondent further agreed to make a lump sum payment to the applicant, which was paid to and accepted by her.

8Of note, the Memorandum of Agreement expressly states that the parties had agreed to the final and binding settlement of all three grievances, which includes the first grievance that raised the same allegation as raised in the instant Application to this Tribunal. In particular, it states: “The Grievor agrees that this agreement constitutes full and final settlement of the above grievances and any other outstanding grievances / issues arising out of her employment with the Board”.

9The Memorandum of Agreement also contains a release provision, which states:

The Grievor releases and forever discharges the Employer and its employees, officers, directors, elected Board officials from any and all actions, causes of actions, claims or demands for damages, entitlement, indemnity, costs, interest, loss or injury of every nature or kind regarding her employment or cessation of employment with the Board. This release specifically includes a release of any claim before any court, tribunal or board under any statute whatsoever and, without limiting the generality of the foregoing, shall specifically include any claims or applications filed with the Human Rights Tribunal of Ontario, the Ontario Labour Relations Board, the Employment Standards Office or otherwise.

10The Memorandum of Agreement also states: “The Grievor agrees that she has entered into this settlement voluntarily and without duress and that the Union has represented her in a fair and proper manner throughout this entire process.”

11Section 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. This 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 Luo v. Dell Canada, 2010 HRTO 879.

12This Tribunal has found that it would be an abuse of process to allow an Application to proceed where the applicant has signed a full and final release, in the absence of exceptional circumstances: O’Regan v. Firestone Textiles, 2010 HRTO 502; Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655; Cuba v. Global Egg Corporation, 2011 HRTO 1121.

13In Perricone, above, this Tribunal recognized that parties to a settlement are prevented from litigating settled matters, stating (at para. 39):

When two parties contract to settle legal matters between them, the principle of finality demands that the contract be given effect and prevents parties from litigating settled matters, unless there are compelling reasons to set the contract aside altogether.

14It is not this Tribunal’s role to assess the appropriateness of the settlement agreement between the parties or to consider whether the settlement agreement addresses all of the issues raised in the Application. Rather, the issue to be determined is whether the settlement agreement is legally binding and final: see King v. Ontario (Health and Long-Term Care), 2011 HRTO 2228.

15While a settlement may be set aside if an applicant was under duress at the time she signed it, the test for whether a person has signed a settlement under duress is high and requires an element of threat or coercion. While economic duress is a factor that may be considered, financial difficulties alone are not sufficient to establish economic duress. An applicant must establish that her need was so serious that she had no other option but to sign the settlement: see Kailani v. Securitas Canada, 2009 HRTO 1183.

16On the teleconference hearing, the applicant raised duress as a reason why she should not be held to be bound by the terms of the Memorandum of Agreement. Specifically, the applicant states that, during the course of the mediation process, she was told by the Union that if she did not agree to the settlement, the respondent may contact the police regarding the alleged improper retention of funds and this may affect her prospect of obtaining future employment. While I appreciate that it may have been upsetting for the applicant to hear this, the reality is that, in the circumstances, this was a valid consideration for the Union to raise.

17The applicant states that she signed the agreement because she was scared that the police would be contacted. She states that she was crying and she was scared, and she signed the agreement without reading it. She states that she was very upset, she was not thinking, and she was not in her right state of mind. She states that she does not think that she signed the agreement of her own free will.

18This Tribunal has held that, in order to succeed with an assertion that, because of mental incapacity, the applicant was incapable of agreeing to the terms of a settlement that was signed by her, there needs to be specific medical documentation that supports such an assertion: Dickson v. General Motors of Canada Limited, 2013 HRTO 1347 at para. 30. No such medical documentation was filed by the applicant for the purpose of the teleconference hearing. I appreciate that the applicant may have been upset and tearful during the mediation process and may have been frightened by the potential for police involvement, but this is not unusual where an individual’s employment has been terminated as a result of serious allegations. There is no basis in the submissions made or material filed to support that the applicant was so incapacitated at the time of the mediation that she was incapable of understanding what she was agreeing to.

19It will be a rare case where a settlement that has been facilitated by an experienced mediator will be found to have been entered into by an applicant under duress. I further note that the applicant already has received and accepted the full benefit of the settlement, which in my view mitigates against an allegation that she should not be bound by its terms. Still further, I note that the applicant did not raise an allegation of duress in her Application or in any materials filed with the Tribunal prior to the oral submissions made at the teleconference hearing, and the applicant acknowledged that she had not raised duress at any earlier time.

20In my view, even accepting at face value what the applicant has stated, there is an insufficient basis in her submissions to justify setting aside the terms of the Memorandum of Agreement.

21Accordingly, I find that it would be an abuse of process to allow this Application to proceed in light of the terms of the Memorandum of Agreement, and the Application therefore is dismissed.