Nyika v. Rygiel for Community Living, 2014 HRTO 173

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Nyika

Applicant

-and-

Rygiel for Community Living

Respondent

-and-

CUPE and Local 4967

Intervenor

DECISION

Adjudicator: Leslie Reaume

Date: February 5, 2014

Citation: 2014 HRTO 173

Indexed as: Nyika v. Rygiel for Community Living

APPEARANCES

Barbara Nyika, Applicant

Self-represented

Rygiel for Community Living, Respondent

Suzanne Gautreau, Representative

CUPE and Local 4967, Intervenor

Bridgette Osborne, 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 discrimination with respect to employment.

2The applicant signed a full and final release in relation to the subject matter of this Application in the course of a prior grievance proceeding. The Tribunal issued a Notice to the parties dated August 26, 2013, indicating that a hearing would be held to determine the effect of that release on this Application.

3At the outset of the hearing, which took place on November 7, 2013, I granted the CUPE's (the "union") request to intervene on the consent of the parties.

4I have determined that this Application should be dismissed. My reasons are as follows.

5There is no question that the release signed by the applicant relates to the same subject matter as the Application before me. The union filed grievances which cover the applicant's termination and alleged violations of the Code, including harassment. The termination grievance was referred to arbitration on August 8, 2012, the harassment grievance on September 10, 2012. A mediation session was held on September 26, 2012. During the mediation an agreement was reached which was signed by the applicant along with a release which covers her labour and human rights grievances.

6The issue raised by the applicant is that she felt pressured by her union representatives to settle the grievances and to sign the release and took steps immediately after the negotiation to have her union set the agreement set aside.

7The union on behalf of the applicant filed grievances and engaged in negotiations with the respondent with the assistance of a mediator. She argues that the negotiation took place until late in the evening and that she felt she was in "confinement" and that her brain was "being drilled" by the union members who were part of the negotiation. The applicant indicates that she repeatedly expressed her concern throughout the negotiation that she had never received an adequate explanation for her termination which is why she wished to proceed to a hearing. She alleges that she was told repeatedly that her case would not be successful at a hearing. The applicant argues that she signed the agreement and release because she felt it was the only way to "get out of the room" and that she felt pressured by three union representatives and the mediator.

8I note that the Minutes of Settlement signed by the applicant contain a final paragraph which reads as follows: "The grievor agrees she was fairly represented by the union regarding the handling and disposition of these grievances." When she was asked what she thought the effect of signing the release would be, the applicant responded that she signed it but hoped she would be able to convince the union to set it aside.

9The applicant alleges that although she received a cheque as part of the settlement, she did not cash it right away because she was making efforts to have the union set the agreement aside. The applicant indicated that she spoke to the national representative of the union the next morning. The union acknowledges that the applicant made contact at some point in October 2012 and that ultimately the union advised the applicant that the settlement was final and could not be revoked.

10Even if I accept that the applicant felt pressured to sign the agreement, particularly by the union's insistence that her grievance would not be successful at a hearing, this is not sufficient to establish duress. The applicant has the burden to establish that there was pressure placed on her which the law regards as illegitimate and to such a degree as to amount to a "coercion of will". (see, Perricone vs. Fabco Plastics Wholesale, 2010 HRTO 1655). While the applicant expressed feeling as if she had no choice but to sign the agreement, there was no evidence that she could point to which would support a finding that she was being coerced in the legal sense and as described above. The applicant was clearly unhappy with the union's analysis of her prospects for success at a hearing, but that does not constitute duress or coercion.

11In addition, the applicant's allegations of duress relate to the conduct of her union. The respondent had no contact with the applicant during the mediation. As far as the respondent is concerned, this matter was resolved at mediation. To permit the applicant to re-litigate these issues against the respondent because of concerns she had about the conduct of her union representatives would be fundamentally unfair to the respondent and constitute an abuse of the Tribunal's process.

12My use of the legal term "abuse of process" is not meant to convey in any way the suggestion of malice on the applicant's part. I have no reason to question the applicant's sincerity when she described her disappointment at not having the support of her union to move her grievance to a hearing and her feeling that the agreement she signed was unfair. However, she signed a legally binding agreement which brings both her labour and human rights claims to a final conclusion and I find there is no basis for me to reverse that outcome.

13The Application is dismissed.