Bangura v. Ontario (Community and Social Services), 2014 HRTO 1353

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Osmand Bangura

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services

Respondent

A N D B E T W E E N:

Osmand Bangura

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services and Heather Hanrahan

Respondents

DECISION

Adjudicator: Maureen Doyle

Date: September 12, 2014

Citation: 2014 HRTO 1353

Indexed as: Bangura v. Ontario (Community and Social Services)

APPEARANCES

Osmand Bangura, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Government Services and as represented by the Minister of Community and Social Services and Heather Hanrahan, Respondents

Jennifer Richards, Counsel

Introduction

1This decision addresses two Applications which have been consolidated. One Application, 2013-15249-I (“the new Application”), alleges discrimination with respect to employment, goods, services and facilities, because of race, colour, ancestry, place of origin, ethnic origin and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The second Application, 2014-16942-S, alleges a breach of a settlement which was reached in respect of an earlier Application to the Tribunal, 2010-06056-I (“the previous Application”).

2The respondents to the new Application deny having discriminated against the applicant. Further, they argue that portions of the new Application should be dismissed pursuant to s. 45.1 of the Code because those portions of the new Application were appropriately dealt with in another proceeding. The other proceeding they rely on was the previous Application, also before this Tribunal, and disposed of through Minutes of Settlement signed by the applicant. With respect to the remainder of the new Application, they submit that there is no reasonable prospect of success.

3Subsequently, in the face of the respondents’ reliance upon Minutes of Settlement that disposed of the previous Application, the applicant filed the Application 2014-16942-S, alleging that the use of those Minutes of Settlement by the respondents in the new Application (i.e. 2013-15249-I) indicated that the confidentiality provision of the Minutes of Settlement had been breached by the respondent in the previous Application (i.e. 2010-06056-I).

4With respect to Application 2014-16942-S, the respondent denies having breached the terms of the Minutes of Settlement and also asserts that though the respondent is named as Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services (hereafter “Ontario (Community and Social Services)”) in the previous Application (the matter which was the subject of Minutes of Settlement), and the corporate respondent is named as Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services (hereafter “Ontario (Government Services)”) in the new Application, the respondent is in each case Her Majesty the Queen in Right of Ontario.

5In respect of the new Application, the Tribunal issued a Case Assessment Direction (CAD) on December 27, 2013 directing that a summary hearing be held, to hear whether the Application should be dismissed as having no reasonable prospect of success, and also directing that the parties make argument about whether the Minutes of Settlement dated March 21, 2013 appropriately dealt with the substance of the Application and whether it should be dismissed subject to section 45.1 of the Code. On May 8, 2014, after the applicant filed his Application alleging breach of the terms of the Minutes of Settlement, the Tribunal wrote to the parties advising that the new Application (2013-15249-I) and 2014-16942-S are consolidated and advising that both would be the subject of the summary hearing.

6In addition to participating in the summary hearing, the applicant provided written submissions in advance of the summary hearing.

BACKGROUND

7The applicant self-identifies as a Black man from Sierra Leone, and a Canadian citizen. He worked as a manager at the Ministry of Community and Social Services for a number of years and his employment ended in February 2010. In June 2010, he filed an Application at the Tribunal alleging that he had been subject to discrimination in the workplace. In that Application, number 2010-06056-I, he named “Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services” as a respondent.

8On March 21, 2013, he signed Minutes of Settlement in respect of Application number 2010-06056-I. Among other things, the Minutes of Settlement provided for the applicant to receive substantial financial compensation, and included the following release:

The Applicant hereby releases and forever discharges the Respondent, the Ministry of Community and Social Services, the Crown in Right of Ontario, its servants, agents and directors of and from all actions, applications, causes of action, grievances, claims, complaints and demands of every nature and kind arising out of, as a result of the Application and the circumstances giving rise to the Application, and any other circumstances arising from the Applicant’s employment or his release, all claims that reasonably ought to have been known, including but not limited to all claims under the WDHP Policy, the Ontario Human Rights Code, Employment Standards Act, Public Service of Ontario Act, and the common law.

9The Minutes of Settlement also included the following provision regarding confidentiality:

The parties agree that the terms of this settlement shall remain strictly confidential and shall not be disclosed unless required by law.

10On August 15, 2013, the applicant filed the new Application in which he alleges discrimination in employment, and goods, services or facilities because of race, colour, ancestry, place of origin, ethnic origin and he alleges reprisal. As set out in greater detail below, the allegations in the new Application include both allegations of discrimination over the course of his previous employment with Ontario (Community and Social Services), as well as allegations over a period of time from when his employment with Ontario (Community and Social Services) ended and he filed the new Application. The latter allegations generally relate to a series of applications he made for new jobs with the provincial government and which he submitted through Ontario (Government Services). He also indicates that the facts of the new Application were part of some other proceeding that is now completed, and named the Ministry of Community and Social Services as a party to the previous proceeding. He submits however, that the previous Application was “against the Ministry of Community and Social Services (MCSS). The Respondents were not a party in that Application”. He indicates the new Application relates to discrimination before hiring and in employment. With respect to alleged discrimination in employment, he alleges discriminatory discipline, termination of employment, poisoned work environment and being denied a workplace opportunity and denial of employment benefits which he describes as receiving information from the individual respondent on May 31, 2013, even though he had requested it in 2010. With respect to alleged discrimination before employment he alleges discrimination as a result of a job ad, in an application form, in a hiring decision and “other”. To be clear, in his narrative, there are no allegations with regard to a job ad or an application form, and the allegation of discrimination before employment appears to be about hiring decisions. He alleges that he was reprised against for having filed the previous Application at the Tribunal.

11The applicant asserts that he “began [his] career in the Ontario Public Service in October 1991 at the Ministry of the Attorney General”. He then describes the progression of his career through different jobs and Ontario government ministries. He alleges that on February 22, 2010 his employment was terminated for discriminatory reasons, and provides in his new Application details from the course of his employment in support of this allegation. He alleges that the Director who discriminated against him was friends with the individual respondent named in the new Application, who works at HROntario. He asserts that the “HROntario Division of MGS…acts as a central point in recruitment processes for OPS ministries”. He also alleges that from February 2010 to March 2013, he “submitted a number of job applications through the HROntario job application submission system”, but was unsuccessful. He alleges that his job applications “reached a dead end at HROntario which is the gateway”.

12In the months following the execution of the Minutes of Settlement, the applicant alleges that he continued to submit job applications through the HROntario online system, but continued to be unsuccessful. He alleges that he has applied for other jobs with government agencies of the Ontario Public Service where he has not been required to submit his application through the HROntario online system, and has been granted interviews. He alleges that given his qualifications and experience, the only reason he has not been successful in getting another job in the Ontario Public Service is the respondents’ discrimination, harassment and reprisal.

13The applicant also alleges that on August 13, 2010 he sent an email to the individual respondent requesting information regarding his employment credits. He alleges that she failed to provide him with the information he sought until May 31, 2013, after he sent an email to the “Assistant Deputy Minister for HROntario”. He asserts that this was discrimination and reprisal and he believes the individual respondent was punishing him for having exercised his rights.

14He also alleges that his former Director began her retirement in December 2010, but according to “the Public Service Disclosure”, she continues to earn a salary. He alleges that this is not an acceptable practice and because she is permitted to do this and he does not believe he would be, he has been treated in a discriminatory manner.

15In the new Application, the applicant notes that the previous Application was settled on March 21, 2013. He alleges that the “Respondents’ failure to comply with the Code deprived [him] of employment that [he] cherished”. He asserts that “The Respondents…are giving very little attention to my MOS”.

16By way of remedy, among other things, he seeks financial compensation, and “to be awarded a position for one of the jobs that I have applied for through MGS (HROntario system) which I am qualified for or a similar management position within the OPS with full redress”.

17As noted above, in their Response to the new Application, the respondents deny having breached the Code and among other things submit that pursuant to s. 45.1 of the Code, by reason of the release signed as part of the March 21, 2013 Minutes of Settlement in the previous Application , the Tribunal should dismiss the portion of the Application that has been resolved by the Minutes of Settlement. A copy of the Minutes of Settlement containing the release was attached to the Response. The respondents deny the remaining allegations, and submit that though the applicant asserts that he was denied jobs because of discrimination and reprisal, he has not indicated any evidence that the respondents’ actions were discriminatory or were by way of reprisal.

18In Reply to the Response, the applicant takes the position that the Minutes of Settlement are “irrelevant” as the previous Application which was settled on March 21, 2013, “was against different respondents”. He cites, for example, Visic v. Law Society of Upper Canada, 2009 HRTO 2068 (“Visic”) where the Tribunal was asked to dismiss the applicant pursuant to s. 45.1 of the Code and at paragraph 3 of that decision stated “The outstanding Application before the Tribunal was initiated by the applicant against different respondents it is therefore irrelevant”. He also takes the position that the Minutes of Settlement were to have been kept confidential, do not “belong to” the respondents, and submits that in any event, the respondents were not released in the Minutes of Settlement. He asserts that he did not give permission for the Minutes of Settlement to be used. He further submits that the subject matter of the new Application is “substantially different” than the subject matter of the previous, settled Application, as it contains issues which were not part of the previous Application, such as job competitions pre and post March 21, 2013, the individual respondent’s failure to provide him with the information he requested in 2010 instead deliberately misleading him with “dishonest expectations”, the individual respondent’s “behaviour and conduct”, a request for an apology from the individual respondent, the addition of the social area of Goods Services or Facilities to his Application and “other serious conduct” contrary to the Code. He opposes the Respondents’ request that parts of this Application be dismissed pursuant to s. 45.1. He also opposes the Respondents’ request for a summary hearing.

19In his written submissions, he cites Chai v. Tai Pan Vacations 2009 HRTO 273 (“Chai”) in arguing that the Tribunal should hear the testimony and evidence of the applicant’s past complaint before making its decision. He also cites Loiselle v. Workplace Safety and Insurance Board 2012 HRTO 2310 (“Loiselle”) to say that the Tribunal cannot determine that there is no reasonable prospect that the Application will succeed and that issues of fact and credibility need to be determined at a hearing. Additionally, he cites Beilman v. Casino Niagara 2009 HRTO 123 (“Beilman”) as a case where the Tribunal heard the evidence prior to determining the objection that the applicant had signed a release, and urges that this is the appropriate approach for this case also.

20In his written submissions regarding whether there is no reasonable prospect of success, the applicant repeats and elaborates on many of the allegations, including allegations of differential treatment of racialized employees and conflict of interest, relating to events prior to the execution of the Minutes of Settlement, which he made in his Application. He also cites several jobs for which he applied after the execution of the Minutes of Settlement, indicates why he feels he was qualified for them and asserts that they were not awarded to him by way of discrimination and reprisal.

21As described above, the applicant subsequently filed Application 2014-16942-S, naming Ontario (Community and Social Services) as a respondent and alleging that it had contravened the terms of the Minutes of Settlement executed in the previous Application. In particular, he alleged that the respondent breached the terms of the Minutes of Settlement by providing a copy of it to the individual respondent and to Ontario (Government Services). He also states that he “believes” there are likely others who have knowledge of the settlement. He submits that neither the individual respondent nor “the Ministry of Government Services” are named in the settlement and asserts that they were not part of the previous Application. He alleges that the breach is part of a conspiracy, as there are personal connections between individuals at Ontario (Government Services) and Ontario (Community and Social Services). He later provided a copy of an email from an employee of Ontario (Government Services) to its counsel, dated April 18, 2013, stating “Mr. Bangura’s payment is currently on hold. We need a current address in order to issue a cheque. Could you please get back to me with a full mailing address for Mr. Bangura”. He submits that this email is proof that his settlement was shared with Ontario (Government Services).

22By way of Response, the respondent submits that in his allegation of a conspiracy, the applicant relies on speculation and innuendo and has not pointed to any evidence of a conspiracy, nor has he pointed to any evidence that the Minutes of Settlement have been shared with others. Further, the respondent submits that the corporate respondent in both the previous Application and the new Application is Her Majesty the Queen in Right of Ontario. It submits that “section 9 of the Proceedings Against the Crown Act R.S.O. 1990 c. P. 27, s. 1 states that in a proceeding under the Act, the Crown is designated as “Her Majesty the Queen in right of Ontario”. It also cites Unger v. Onondaga (Township) [1996] O.M.B.D. No. 723, which states that it is the government of Ontario which is the proper party to litigation (“Her Majesty the Queen in Right of Ontario”), and the respondent submits this can provide guidance to the Tribunal in respect of this Application. It submits that the settlement in the previous Application was reached with the same corporate party against whom the applicant filed the new Application. It disputes that there was any ongoing disclosure of the settlement by the Crown.

Application alleging Breach of Settlement, #2014-16942-S

23For the reasons which follow, Application 2014-16942-S alleging a contravention of the terms of the Minutes of Settlement signed in the previous Application (i.e. 2010-06056-I), is dismissed.

24In the previous Application , the applicant signed Minutes of Settlement which included a confidentiality provision which he claims was breached by the respondent in that case, because the respondents in Application 2013-15249-I used the Minutes of Settlement in their Response. He argues that the respondent in the previous Application was the Ministry of Community and Social Services and that the respondent in the new Application is the Ministry of Government Services, and essentially submits that one government ministry should not have been able to communicate the terms of the Minutes of Settlement to another government ministry. He argues that the use of “Her Majesty the Queen in Right of Ontario” in the style of cause is simply to distinguish the Ontario government’s Ministry of Community and Social Services from other provincial governments’ ministries of community and social services. He calls “Her Majesty the Queen in Right of Ontario” an “identifier”. He also submits that his employer was the Ministry of Community and Social Services, and cites the fact that in correspondence counsel for the respondents has referred to the Ministry of Community and Social Services as “the employer”.

25The respondent has argued and I accept that though the style of cause of the previous application names “Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services” and the style of cause of the new Application names “Her Majesty the Queen in Right of Ontario as represented by the Ministry of Government Services”, the respondent in both Applications is Her Majesty the Queen in Right of Ontario.

26I note also that this is consistent with what the applicant appeared to expect when he stated in the new Application that the respondents were “giving very little attention to” his Minutes of Settlement.

27Further, whether the respondents’ counsel in previous correspondence made reference to the “employer” as the Ministry of Community and Social Services, is not determinative of the identity of the respondent in these matters. In any event, I also note that in the new Application, the applicant has spoken of his attempts to secure employment in the Ontario Public Service through what he calls the “gateway” at HROntario in the Ministry of Government Services, his start date with the Ontario Public Service in October 1991, his desire to return to employment in the Ontario Public Service, and he has even requested a remedial order for placement in a position in the Ontario Public Service. It would appear that while he worked at the Ministry of Community and Social Services from 1996 (when he says the Family Support Plan at the Ministry of the Attorney General became the Family Responsibility Office at the Ministry of Community and Social Services) to 2010 , the applicant has considered himself to be an employee of the government of Ontario since October 1991.

28I reject the applicant’s argument that “Her Majesty the Queen in Right of Ontario” appears in the style of cause simply in order to distinguish the Ministry from similarly named ministries in other Canadian provinces. The Tribunal has previously considered the identity of the respondent where a ministry appears in the style of cause. For example, at paragraph 46 of McKinnon v. Ontario (Ministry of Correctional Services) 2011 HRTO 263, the Tribunal stated:

It may be true that it has been referred to countless times in litigation and that countless orders have been addressed to the Ministry per se without reference to any particular public servant (such as the Deputy Minister). However, it is the Crown as represented by the Ministry that has been the party in question. The word ‘ministry’ is most often used in litigation in this province as an ellipsis for ‘Her Majesty in Right of Ontario’, the name of the specific ministry (e.g. Ministry of Corrections) being included as the Crown’s representative in the style of cause presumably to indicate the particular department of government affected thereby and the source of instructions for its counsel.

29Additionally, at paragraph 13 of Morris v. Ontario (Ministry of Finance), 2010 HRTO 2327, a matter which named “Her Majesty the Queen in Right of Ontario as represented by the Ministry of Finance” in the style of cause, in considering submissions regarding bias, the Tribunal stated that the “organizational respondent is the government of Ontario”.

30The cogency of this conclusion is highlighted in the following from paragraph 24 of Unger v. Onondoga (Township) [1996] O.M.B.D. No 723:

[I]t is the government of Ontario, properly named in legal proceedings as ‘Her Majesty the Queen in Right of Ontario’, which sues and is sued. Ministries are creatures of statute; by act of the Legislature they can be created and dissolved, amalgamated and split. None of these actions, however, would relieve the province of legal obligations to its citizens, or deny it the right to pursue its interests in courts and tribunals. Ministries change; the government doesn’t. That is why it is the government which is the proper party, not the Ministry.

31The terms of the confidentiality portion of the agreement are, in and of themselves, very general in nature, stating only that the, “parties agree that the terms of this settlement shall remain strictly confidential and shall not be disclosed unless required by law.” As a starting point, it is Her Majesty the Queen in Right of Ontario who is the same respondent party in both the previous Application and the new Application. Accordingly, the fact that the respondent is in possession of the Minutes of Settlement does not on its face amount to disclosure in breach of the confidentiality provisions of the agreement. Even if there is any question about the scope of the meaning “strictly confidential” in the context of internal disclosure, I have no doubt the respondent was entitled to disclose the agreement internally to the extent of and for the purpose of relying on the full scope of the release. Accordingly, I find the internal disclosure of the agreement for the purpose of relying on the release for this litigation does not constitute a contravention of the settlement and this allegation is dismissed.

32Further, even if the respondent in both Applications had not been Her Majesty the Queen in Right of Ontario, the above-noted Minutes of Settlement make specific reference to a release of “the Crown in Right of Ontario, its servants, agents and directors”. The applicant signed Minutes of Settlement which specifically released the government of Ontario and its servants, agents and directors. “The Crown in Right of Ontario” is not limited to some portion or segment of the provincial Crown and it necessarily includes the Her Majesty the Queen as represented by the Minister of Government Services and the individual respondent, who is a servant, agent or director of the Crown. Release language is included in Minutes of Settlement precisely in order that releasees may rely upon it should further legal proceedings be instituted against them by the releasor. Release language serves no other purpose.

33Further and in any event, in the new Application, the applicant indicated that there had been proceedings at the Tribunal against the Ministry of Community and Social Services which included the facts of the new Application. The applicant would have been required at law to produce the Minutes of Settlement of the previous Application to the HRTO which included a release of the Crown in Right of Ontario and its servants, agents and directors, as part of his disclosure obligations and had he failed to do so, it is likely he would have been found, at a minimum, to have abused the process of the Tribunal.

34The applicant has also alleged that the respondent has divulged the terms of the Minutes of Settlement and alleges a conspiracy. He relies upon his belief in this regard and the only evidence to which he indicates he can point is an email which requests his address in order to send him a cheque. The email is vague and makes no reference to the Minutes of Settlement. Further and in any event, confidentiality in Minutes of Settlement must be understood as permitting respondents to implement the terms of the settlement. Otherwise, contravention of the settlement is all but guaranteed. The applicant has not been able to point to evidence which would establish contravention of the settlement and this allegation is dismissed as having no reasonable prospect of success.

35For all of the above reasons, Application 2014-16942-S is dismissed.

The new Application alleging Discrimination and Reprisal, # 2013-15249-I

36For the reasons stated below, the new Application (i.e. 2013-15249-I) is dismissed.

[Section 45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

37The Application is dismissed in part pursuant to s. 45.1 of the Code, which reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

38In Campbell v. Toronto District School Board 2008 HRTO 62, at paragraph 61, the Tribunal stated as follows regarding the application of section 45.1:

In addition to issue estoppel and abuse of process, section 45.1 provides a basis for the Tribunal to preclude the re-litigation of issues that have been dealt with in another forum. This provision, along with other parts of the Code, gives expression to a legislative intention to avoid the duplication of proceedings… My conclusion for the purposes of this case is that section 45.1 provides a discretion to the Tribunal which is at least as broad as the doctrines of issue estoppel and abuse of process. On the facts of this case, the bases for my finding that abuse of process applies to prevent the re-litigation of certain issues equally support the application of section 45.1.

39As I have found that the corporate respondent is the same in both the previous Application and the new Application, the Tribunal’s decision in Visic does not assist the applicant in his submission that the Minutes of Settlement in the previous Application are irrelevant. The applicant submits that I must hear all the evidence and testimony in the case before deciding what role the release plays in the instant Application, as he submits that there is no agreement between him and the respondents. However, for the reasons noted above I have found that the corporate respondent is the same in the settled Application and the instant Application and I have found the release to include a release of the individual respondent. Further, I note that though the applicant’s written submissions have included a discussion of whether the individual respondent is exempted from personal responsibility, given my findings regarding the applicability of the signed release to the individual respondent, it is not necessary for me to address this argument. Similarly, in his written submissions, the applicant also made argument about whether the Crown enjoys immunity in human rights cases under the Code. As the Crown has not taken the position that it enjoys immunity in human rights cases under the Code, it is not necessary for me to address that argument. The Crown has simply taken the position that it is a releasee in the release signed by the applicant in his earlier application.

40Further, I note that in his written submissions regarding the applicability of s. 45.1, the applicant alleges that the respondents’ “policies and actions applied against me” violate the Canadian Charter of Rights and Freedoms. The applicant has not given the requisite notice to the Attorneys General of any challenge based on the Charter, but in any event, I do not need to consider this argument, as given my determination pursuant to s. 45.1 of the Code, the respondents’ policies and actions are not considered in this decision.

41The applicant has also cited Chai and argues that as the Tribunal heard evidence and testimony about the previous complaint, it is appropriate to do so in this case also. The question before the Tribunal in Chai was whether the respondent’s actions subsequent to signing the Minutes of Settlement were reprisal. It was not a question of whether the settlement had appropriately dealt with the substance of the subsequent application, and accordingly, the approach in that case is not of assistance here.

42The applicant also cited Bielman and urged the Tribunal to hear the evidence relating to the Application prior to determining whether to dismiss part of this Application pursuant to s. 45.1 of the Code. In Bielman, however, the Tribunal stated that it had insufficient evidence at that point to determine that there it would be an abuse of process to allow the matter to continue and “concluded that the evidence required to deal with this issue as a preliminary objection would essentially be the same as the evidence required to decide the case on the merits”. As I have not found that there is a need for further evidence in order to be able to determine the applicability of s. 45.1, the approach in Bielman is not of assistance here.

43There are two issues to be determined here: did the settlement of the previous Application constitute a proceeding within the meaning of s. 45.1 and if it did, did the settlement appropriately deal with the substance of the new Application?

44The Tribunal has accepted that a settlement of a matter before an adjudicative body can constitute a proceeding for the purposes of s. 45.1. At paragraph 37 of Dunn v. Sault Ste. Marie (City) 2008 HRTO 149, the Tribunal stated:

…the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end the litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation.

45The parties here signed Minutes of Settlement in the previous Application and I find that the previous Application and its resolution by way of settlement amounts to a proceeding for the purposes of section 45.1.

46There is no suggestion that the Minutes of Settlement were not voluntarily executed by the parties.

47In deciding if the settlement appropriately dealt with the issues before the Tribunal in this Application, I turn to the language used by the parties in their agreement to express the nature of the issues that were resolved. In signing the Minutes of Settlement which included the above-noted release, the applicant agreed that in exchange for certain consideration, which included payment of significant financial compensation, he released the respondent and servants, agents and directors of the Crown from “all actions, applications, causes of action, grievances, claims, complaints and demands of every nature and kind arising out of, as a result of the Application and the circumstances giving rise to the Application, and any other circumstances arising from the applicant’s employment or his release, all claims that reasonably ought to have been known, including but not limited to all claims under the WDHP Policy, the Ontario Human Rights Code, Employment Standards Act, Public Service of Ontario Act, and the common law”.

48On the terms of the release signed by the applicant, it is evident that any claims arising from his employment, the cessation of his employment, and any claim that ought reasonably to have been known, were resolved in exchange for consideration to which the applicant agreed. There has been no claim the Minutes of Settlement did not appropriately deal with the matters with which they were purported to deal.

49I find that but for the applicant’s allegations regarding his applications for positions in the Ontario Public Service after March 21, 2013, the date the Minutes of Settlement were signed, the allegations contained in the new Application were claims which arose from his employment, the cessation of his employment and were claims which ought reasonably to have been known to the applicant at March 21, 2013. I find that these allegations have been appropriately dealt with by the settlement of the old Application, and they are dismissed pursuant to s. 45.1 of the Code.

50In his written submissions, the applicant submits that even if the Tribunal finds that he is bound by the terms of the Release, he should be able to proceed with the allegations which arose after he signed the Release as he cannot be said to contract out of his “future rights”. This decision has determined that the terms of the Release are applicable to the allegations he has made up to the time of the execution of the Minutes of Settlement. Below is consideration and determination of the allegations relating to events after the date of the execution of the Minutes of Settlement.

No reasonable prospect of success

51In the summary hearing, the parties were required to address the issue of whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

52In Dabic v. Windsor Police Service, , at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

53The applicant alleges that he was not successful in obtaining a job in the Ontario Public Service where he had to submit job applications through the on-line HROntario system because the individual respondent, who knew his former Director, discriminated and reprised against him. He asserts that given his qualifications and experience there is no other explanation for the fact that he has been unsuccessful in this job search.

54The applicant cites Loiselle and argues that issues of fact and credibility should be determined at a hearing. In the instant case, however, the applicant has not indicated evidence to support his position which must be tested under oath. The applicant must be able to show that the respondents have treated him differently as compared to others based on the grounds he has cited, or based on reprisal, for his Application to be successful.

55He has made bald assertions of discrimination, but he has not been able to identify any evidence which would, if proven, establish a connection between the respondents’ alleged actions and the grounds he has cited. Without such evidence, this allegation in his Application cannot succeed. It was not disputed that the individual respondent’s job function did not include receipt or assessment of job applications on the HROntario on-line system. The applicant has asserted his belief, based on suspicion, that the individual respondent had direct involvement with his job application, but has been unable to point to any evidence which would establish such involvement.

56The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish such intention and a link to the respondent’s alleged actions. The applicant has not been able to identify any evidence which, if proven, would establish that the respondents intended to reprise against him for asserting his human rights. The fact that the individual respondent knew the applicant’s former Director would not be sufficient to establish intent to reprise against the applicant, and again, the applicant has made a bald assertion without being able to point to the evidence necessary to establish his claim.

57With respect to general allegations of discrimination by the corporate respondent, wherein the applicant alleges that discrimination was the reason he was not successful in securing a job with the respondent after the Minutes of Settlement were signed, I find that there is no reasonable prospect of success. He has not pointed to evidence, for example, to indicate that decision-makers screening and assessing applications were aware of job candidates’ race, colour, ancestry, place of origin, ethnic origin from the on-line system, but even assuming without deciding that the ‘blind’ (i.e. electronic) application process could give rise to possible identification of applicant as a racialized individual, he has not pointed to evidence he would be able to call to establish his allegation. Though he points to some evidence regarding his education and success in obtaining interviews for positions elsewhere, and asserts that successful candidates for HROntario jobs included an individual he had “beaten” in previous job competitions, and complains generally about the fact that former coworkers who he believes were guilty of misconduct were successful in other job competitions, he has not pointed to, for example, evidence of his comparative qualifications for the jobs he sought through HROntario. The simple fact that an individual obtains a job interview for one position he or she applies for and not for a different position that was applied for is insufficient, without more, to give rise to an inference that a Code ground was a factor in not obtaining a job interview for that second position. Even in one case, where he identifies a candidate whom he alleges was “offered” one of the positions he sought, the applicant has not indicated what his evidence is that that candidate was “offered” the position. Further, though he alleges that the candidate is white and was junior to him at the Family Services Office, he has not particularized the allegation and identified the exact position in question or its requisite qualifications. It follows that he has not pointed to evidence which would establish his comparative qualifications for the position he alleges they both sought. The applicant has made broad, bald assertions, but does not point to evidence which would invite an inference to be drawn that he did was not successful in his job applications due to the grounds cited in his Application. Without evidence to link the respondent’s alleged actions to the grounds cited, his Application has no reasonable prospect of success.

58For the reasons above, the allegations relating to the applicant’s failure to be successful in securing a job in the Ontario Public Service through his applications after March 21, 2013, via the on-line system at HROntario due to discrimination based on race, colour, ancestry, place of origin, and ethnic origin, are dismissed as having no reasonable prospect of success.

59For all of the reasons above, the new Application (i.e. 2013-15249-I) is dismissed.