Chapman v. Ontario (Attorney General), 2014 HRTO 134

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Chapman

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Attorney General, Facilities Branch, Corporate Services Management Division

Respondent

-and-

Assoication of Management and Professional Crown Employees of Ontario

Intervenor

DECISION

Adjudicator: Mary Truemner

Date: January 30, 2014

Citation: 2014 HRTO 134

Indexed as: Chapman v. Ontario (Attorney General)

APPEARANCES

Mary Chapman, Applicant

Self-Represented

Ministry Of Attorney General, Facilities Management Branch, Corporate Services Management Division, Respondent

Paul Meier, Counsel

Association of Management and Provessional Crown Employees of Ontario, Intervenor

Nadine Blum, Counsel

Introduction

1This is an Application filed on March 1, 2013, 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 age, family status, gender identity.

2In an Interim Decision issued May 28, 2013, that responded to the respondent’s Request for Order During Proceedings (2013 HRTO 921), the Tribunal granted status to the intervenor and made the following direction:

The Registrar will schedule a Preliminary hearing in this matter, at which time the parties will address the question of whether this Application should be dismissed pursuant to s. 45.1 of the Code, or alternatively, whether it should be dismissed as an abuse of process, and the parties should also be prepared to address whether the Application is, in whole or in part, outside the Tribunal’s jurisdiction for reasons of delay, pursuant to s. 34 of the Code.

3A Notice of Preliminary Hearing was sent by the Tribunal to the parties on June 7, 2013. The applicant filed a Request for Order During Proceedings on July 26, 2013 which appears to ask for the reconsideration of the Tribunal’s decision to allow the intervenor’s request to intervene. Given that the applicant’s Request for Order During Proceedings was filed after the Interim Decision and Notice of Preliminary Hearing, the preliminary hearing did not deal with her request, and given that the Application is dismissed for reasons that have nothing to do with the granting of the intervention, there is no need to address the applicant’s RFOP.

BACKGROUND

4The applicant worked for the respondent as one of the Facilities Management Coordinators until it eliminated the coordinator positions and demoted her to a lower level position. She applied for one of the newly-created advisor positions, but was never granted an interview. The applicant believes that the respondent contrived to exclude the applicant, along with some of her colleagues, because she is a woman, has a child and is over 50 years old. At the preliminary hearing, the applicant agreed that some of the people hired for the advisor positions were women and had children, but she believes that all of them were under the age of 45.

5The applicant’s bargaining agent, the intervenor, filed “Disputes” (“grievances”), on her behalf, regarding the respondent’s reorganization, its surplusing of the applicant’s position and its refusal to place the applicant in a position equivalent to the position that she had held. The grievances included allegations of contraventions of Article 2 of the Collective Agreement which states that “there shall be no discrimination or harassment because of… sex… age… family status… as defined in… [the Code].”

6The grievances went to the Grievance Settlement Board (“GSB”) where they were resolved through a settlement signed by the applicant on March 1, 2013. The settlement contain a release paragraph that states:

In consideration of the above paragraphs, the Complainant and the Association release and forever discharge the Employer, the Crown, Ministers, Deputy Ministers, its employees, agents, officials and servants of and from all disputes, actions, causes of action, claims, complaints, grievances and demands of any nature and kind whenever arising at common law, in equity, by statute, or otherwise, arising out of the agreement between the Employer and the Association, the Ontario Human Rights Code, the Public Service of Ontario Act, 2006 and the Employment Standards Act, 2000 and any amended or successor statutes and sections, or otherwise.

7In the Application, filed at the Tribunal immediately after the applicant settled the grievances and released the respondent, the applicant described the reason she alleges a violation of the Code as follows:

… I was being forced to sign and agree to a GSB mediation agreement, that was to have remedied my unfair job surplussing at Ministry of Attorney General. I did not agree to the mediation outcome of my case and as a result I am now filing this application which states that I believe I was discriminated against in employment, by my former director, on the basis of ageism, gender and family status. In addition on January 6, 2011, the employed [sic] subjected me to job reprisal because I filed a grievance before the GSB.

abuse of process

8The Application appears to indicate that the facts of the Application are part of a grievance proceeding, but that the grievance proceeding did not appropriately deal with the substance of the Application:

The union grievance did not properly address my request for job reinstatement, to the Facilities Management Coordinator position on the basis that the employer had acted in bad faith and had violated my human rights in surplussing me from my job of (11) eleven years on the grounds of Ageism, Gender and Family Status. This was apparent in that the employer hired younger, mostly female staff to replace me, to perform the same work that I performed. The newly hired staff that performed the same work were mostly younger female, under 50 years of age. I am over 50 years old; this would be deemed to be ageism. Most of these newly hired female workers did not have children; so the employer also discriminated against me with regard to family status as an over 50 female mom. (I have a young child)….

9At the preliminary hearing, the applicant explained that the substance of the Application focuses on the loss of her coordinator position and her inability to obtain an advisor position. She agreed that this was the substance of her grievances, but stated that the Application also deals with something that was not contained in the substance of her grievances, namely, the respondent’s contrivance to screen candidates for two competitions for advisor positions with only a test, when normally the respondent would also interview candidates. The applicant and her colleagues who had been coordinators did not get offered interviews for the advisor positions in those competitions. The applicant argued that her allegations about the competition for the advisor positions and the respondent’s screening to exclude her from them were therefore not dealt with by the grievances.

10Responding to the applicant, the respondent argued that the allegations about the discriminatory screening for the advisor position competitions were the substance of two of the grievances settled by the Minutes of Settlement. Those grievances each stated with respect to each of the competitions:

Contrary to the employer's own directives, guidelines and policies, the competition for the position of RP&BA AM-20, was conducted unfairly in that, I was not properly or fairly assessed and as a result was not invited for an interview for any of these five positions and which is approximately 85% similar to my current role.

11The applicant agreed that the above two grievances to which the respondent referred were listed on the cover page of the Memorandum of Settlement indicating that the terms of the settlement, including the release, applied to those grievances.

12I therefore cannot agree with the applicant that the allegation that the competition for the advisor positions was not a part of the grievances that are covered by the settlement and release.

13Having heard the submissions at the preliminary hearing, and having reviewed the grievances and the Application, I am satisfied that they deal with the same factual issues. The grievances were settled with a release stating that the applicant released the respondent from all claims under the Code. In my view, this is a circumstance where the doctrine of abuse of process applies.

14In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, the Supreme Court of Canada writes the following regarding the doctrine of abuse of process:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled one bite at the cherry … An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue cost, and inconclusive proceedings are to be avoided.

15In cases where an applicant has signed a full and final release stating that he or she will not bring an Application to the Tribunal but then does file an Application, the Tribunal will generally not permit the Application to proceed. The reasons for this were explained in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at paras. 34 and 35:

The importance of final and binding settlements in the unionized workplace is articulated in the purposes of the Labour Relations Act, which include “[t]o promote the expeditious resolution of workplace disputes”. The importance of binding agreements was articulated by the OLRB as follows in TRW Automotive (Kelsey-Hayes Canada Ltd.), [2000] OLRB Rep. July/Aug. 731 at para. 14:

Parties are entitled to rely on agreements freely entered into. Nothing would be more disruptive to orderly labour relations than to permit parties to revoke agreements among employees, their trade union, and their employer into which the parties have entered to settle disputes or potential disputes.

This is true of human rights disputes, in whatever social area they arise. There is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end.

16In this case, the applicant filed grievances in regard to what she says is the crux of her Application: the loss of her coordinator position and her inability to obtain an advisor position, including her allegation that the respondent’s screening process for the advisor positions was unfair. By signing the settlement and release, the applicant agreed that she no longer would act on any “disputes, actions, causes of action, claims, complaints, grievances and demands of any nature and kind whenever… arising… out of… the Ontario Human Rights Code”. But the applicant alleges that she signed the settlement and release under duress so she is not bound by the release.

17The applicant explained at the preliminary hearing that, at the grievance settlement meeting, the intervenor gave her the settlement documents to sign on February 26, 2013, but they were unacceptable. She agrees that she did not sign the settlement until March 1, 2013, but even then she felt pressured to sign, she says, because 1) her similarly situated colleagues who were also complainants signed; 2) the intervenor would have signed on her behalf; 3) she wanted to return to her “19 Level” that the settlement would ensure; and 4) she didn’t know what would happen if she did not sign.

18The Ontario Court of Appeal recently described duress in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 at paras. 8-9:

There is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis.

However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to “a coercion of the will” of the party relying on the concept. See: Stott v. Merit Investment Corp. [(1988)], 1988 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. C.A.), as para. 89.

19The applicant has failed to make out the elements of duress. There is no suggestion that pressure was exerted by the intervenor or the respondent which might be considered by law to be illegitimate. Even if it were, which I do not find, I find that the pressure the applicant felt, as described above, was not applied with such pressure as to constitute a “coercion of the will”. I particularly note that the applicant had several days to review the settlement and consider carefully whether or not she should sign.

20The respondent is entitled to rely upon the release and the settlement. To set these aside and allow the Application to proceed would be an abuse of process.

ORDER

21The Application is dismissed.