HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jean-Yves Bernard
Applicant
-and-
Patricia Jasen, Jennifer Roth, Pamela Wakewich, Jane Nicholas, Kristin Burnett, Constance Russell, and Lori Chambers
Respondents
-and-
Lakehead University
Intervenor
DECISION
Adjudicator: Geneviève Debané Date: March 17, 2014 Citation: 2014 HRTO 374 Indexed as: Bernard v. Jasen
APPEARANCES
Jean-Yves Bernard, Applicant Self-represented
Patricia Jasen, Jennifer Roth, Pamela Wakewich, Jane Nicholas, Kristin Burnett, Constance Russell, and Lori Chambers, Respondents Self-represented
Lakehead University, Intervenor Barry Kuretzky, Counsel
1The applicant has filed seven Applications against individuals who are former co-workers. In Interim Decision 2013 HRTO 1383 the Tribunal directed at para. 8(e):
The Registrar shall schedule a half-day summary hearing via telephone conference to address the following issues:
i. Whether the seven Applications should be dismissed as an abuse of process and/or because the applicant entered into Minutes of Settlement;
ii. Whether all and/or part of the Applications should be dismissed on the basis that they have no reasonable prospect of success; and
iii. Whether all or part of the Applications should be dismissed on the basis of delay.
2Having heard and considered the matter I find that the Minutes of Settlement preclude the applicant from filing the Applications. I also find that it would be an abuse of process to permit the applicant to proceed with the Applications. Having made these findings, I will not address the issues of delay and whether the Applications have no reasonable prospect of success.
Background
3The applicant was employed as a Professor with Lakehead University (the “University”) and is a member of the Lakehead University Faculty Association (the “Association”). The applicant filed two Applications with the Tribunal. The first, Application 2009-02292-I, was filed on May 14, 2009 and named the University, his Association, Gillian Siddall, Ray Raslack, Laurie Hayes and Frederick Gilbert as respondents.
4The second, Application 2012-11060-I, was filed by the Applicant on March 6, 2012 against the University, Gillian Siddall, Ray Raslack, and Brian Stevenson. The applicant filed a Reply to the Response on February 11, 2013.
5The Tribunal consolidated the first Application with Application 2009-02383-I which had been filed by another Professor, Ronald Harpelle, and on March 19, 2013 the parties attended a hearing in Thunder Bay with respect to these consolidated Applications. The parties agreed to engage in mediation-adjudication and they successfully entered into Minutes of Settlement on the second day of hearing, March 20, 2013.
6On April 30, 2013, the applicant filed seven Applications against the respondents for events that occurred in 2012. The Applications indicate that the last incident of alleged discrimination occurred on June 20, 2012. The applicant alleges that the seven Applications relate to “harcèlement universitaire ou academic mobbing”. The applicant alleges that the seven respondents acted with the support of and in collusion with two personal respondents who were named in the other two Applications. The Application also alleges that four of the respondents are linked to events of discrimination in 2007 and 2008 and that this historical context will have to be considered during the hearing.
7The Applications allege that the applicant and some of the respondents were members of a hiring Committee. The parties agreed that though it was preferable that the Committee make a unanimous decision that this was not required. Though the Committee makes a recommendation it is ultimately Lakehead University that makes the decision to hire the candidate and not the Committee.
8The applicant asserts that on June 20, 2012, he raised the issue with respect to the Committee and the consideration of a candidate. Though in this letter he raises a number of issues with respect to the consideration of the candidates which are not Code-related, the applicant does state:
“What were the criteria used to determine that this African scholar was not a feminist. Does this violate a prohibited ground as defined by the Code? I am not an expert in this area but I want HR to provide me with a written opinion on whether or not this violates a prohibited ground as defined by the Ontario Human Rights Code.”
9The applicant states in the Application that this candidate was the victim of discrimination in hiring which is “exactly similar to the discrimination that occurred in 2007 and 2008” [TRANSLATION]. The Application is replete with references with respect to events that occurred in the past but the applicant states that the present Applications are only with respect to events that occurred from February 2012 to the present.
10The applicant asserts that because he sent this letter he was the subject of false and groundless complaints by the respondents and that this constitutes a reprisal under the Code. He asserts that on June 28, 2012, Ms. Chambers and Ms. Nicholas filed accusations of sexism which is exactly what occurred in 2008.
11Thereafter, there are further internal complaints including one filed by the applicant alleging “academic mobbing” and another one alleging harassment and reprisal. The applicant then also filed an internal complaint against the respondents. All of these complaints occurred from June to August 2012.
Abuse of Process
12Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that this 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 for example, Hazel v. Ainsworth Engineered, 2009 HRTO 2180; Perricone v. Fabco Plastics Wholesale (“Perricone”), 2010 HRTO 1655.
13The first issue to be determined is whether the language of the Release prohibits the applicant from filing the seven Applications at the Tribunal. The relevant portions of the Minutes of Settlement state:
Minutes of Settlement
Whereas the Applicants have filed human rights applications against the Respondents in Ontario Human Rights Tribunal File Numbers 2009-022-92-I, 2009-02383-I, 2012-11060-I, and 2012-11542-I (the “Applications”)
And whereas the parties hereto wish to resolve any and all issues between them regarding the matters set out in the aforementioned Applications and any complaint or claim that could have been made in those Applications;
The Applicants on behalf of themselves, heirs, executors, successors and assigns release and forever discharge the respondents, their heirs, executors, successors and assigns, together with parent, subsidiary, affiliated or associated entities and past and present future officers, directors, employees, servants and agents, jointly and severally, from any and all actions, causes of action complaints, claims, applications, or demands whatsoever arising out of the Applications and any issues or claims that could have been made in those Applications.
The applicants have discussed any and all human rights complaints, concerns, or issues arising out of or in respect of the Applicant’s employment. These Minutes of Settlement constitute a full and final settlement of any existing, planned or possible complaint or complaints against the respondents under the Ontario Human Rights Code arising out of or in respect of the Applicant’s employment. The payment in these Minutes of Settlement represent compensation for settling and resolving any outstanding human rights complaint, concern or issue.
The Applicants further agree not to make any claims or take any proceedings of any kind against any other individual, partnership, association, trust, unincorporated organization, corporation or entity with respect to any matters which may have arisen between the Applicants and Respondents or any one of them or in which any claim could arise against the Respondents or any one of them for contribution and indemnity.
The parties agree that this settlement disposes of all issues whatsoever, fully and finally, with respect to the Applications, including any issues that could have been raised in those Applications. Except as otherwise agreed in writing, these Minutes of Settlement constitute the entire agreement between the parties respecting the settlement of the Applications. There is no understanding, representation, warranty, collateral agreement or condition affecting or respecting this settlement except as expressly set out.
The parties confirm that they have carefully and completely read these Minutes of Settlement and the attached Full and Final release and Indemnity and represent that they fully understand the terms and effect of these documents after receiving independent legal advice in regards to the terms hereof.
14It is the applicant’s position that he only intended to settle the events described in the two previous Applications and that he did not raise the allegations of “academic mobbing” in either of those Applications or the events that occurred post February 2012.
15Having reviewed the Minutes of Settlement there is clear language to the effect that the Minutes of Settlement contemplate a much broader release of claims. At paragraph 8 the parties refer to claims in the Application or that could have been “made in the Application”.
16Further, there is the acknowledgement at paragraph 9 that states that the Minutes of Settlement constitute a final settlement of any “possible complaint” and “resolving any outstanding human rights complaint, concern or issue”. This is clear unequivocal language which is much broader than the narrow interpretation proposed by the applicant.
17Further, paragraph 10 states that the applicants “agree not to make any claim or take any proceedings of any kind against any other individual…with respect to any matters which have arisen between the Applicants and the Respondents”.
18Having reviewed the terms of the Minutes of Settlement I find that there is clear language that precludes the applicant from filing the seven Applications.
19During the conference call the applicant conceded that the language in the settlement as referenced above is broader than simply the “Applications”. He argues the following:
a. That the Minutes of Settlement should be voided because the parties were not ad idem on the issue of the scope of the settlement;
b. That he now believes that he was duped into signing the Minutes of Settlement;
c. That if evidence into the settlement discussions is admitted that it will demonstrate that the respondents refused a “global offer” and that at one point during the negotiations he was advised that the settlement would only be with respect to the four Applications; and
d. The applicant states that he did not have legal representation to look after his interests and that the document was not drafted in French.
20The applicant takes the position that he should be permitted to call evidence with respect to the negotiation of the settlement.
21Having considered the matter, I find that it is not necessary, nor is it appropriate for the Tribunal to hear any evidence with respect to the negotiation of the settlement.
22I have considered the reasoning in the case of Simpson v. Canada (Attorney General), 2011 ONSC 5637 at paras. 60 to 70. I find that the terms of the Minutes of Settlement are clear and unambiguous on their face and it is therefore not necessary for me to hear evidence with respect to settlement negotiations or any extrinsic evidence. Further, though in most negotiations there may be a number of offers and counter-offers that are exchanged; my task is to interpret the final product which is the Minutes of Settlement.
23With respect to the applicant’s assertions that he did not have independent legal advice and that the Minutes of Settlement were drafted in English, I make the following observations. The applicant signed the Minutes of Settlement which “confirm” that he did obtain independent legal advice and I find it of concern that the applicant now takes the position that this is an inaccurate statement. However, the applicant cannot rely on his own misrepresentation in the Minutes of Settlement to vitiate his consent. Further, though the Minutes of Settlement are not in French, I note that the applicant is a University Professor who teaches in English and is clearly highly proficient in the English language.
Order
24Therefore, I find that the Minutes of Settlement preclude the applicant from filing the seven Applications and that it would be an abuse of process to permit these Applications to proceed.
25The seven Applications are dismissed.
Dated at Toronto, this 17th day of March, 2014.
« Signed by »
Geneviève Debané
Vice-chair