HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Constantinos Karambetsos
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Katherine Kringer, Vicki Robertson and Steve Walker
Respondents
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Karambetsos v. Ontario (Community Safety and Correctional Services)
APPEARANCES
Constantinos Karambetsos, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Katherine Kringer, Vicki Robertson and Steve Walker, Respondents
Marnie Corbold, Counsel
1This is an Application filed on October 20, 2010 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 because of race, ancestry, place of origin, citizenship, ethnic origin, disability, age and reprisal.
Background
2In Karambetsos v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1693, the Tribunal deferred this Application pending the completion of an ongoing workplace grievance/arbitration process dealing with several grievances filed by the applicant.
3By letter dated September 17, 2013, the Tribunal directed the applicant to advise the Tribunal regarding the status of the grievance/arbitration process. By e-mail message dated September 17, 2013, counsel for the respondents advised the Tribunal that the parties settled several of the applicant's grievances, including the grievance arising out of the facts on which this Application is based. Counsel further advised that the terms of settlement required the applicant to withdraw this Application.
4By e-mail message dated September 23, 2013, the applicant submitted that not all of his grievances were settled and stated that he withdrew portions of the Application that were related to the settled grievances, but stated that he would not withdraw the full Application when many of his issues remain outstanding and unresolved. The applicant, who lives in Kenora, also submitted that he agreed to the settlement in part because of the difficulties he experienced because of his medical condition in travelling to Thunder Bay where the grievance/arbitration proceedings were held.
5By letter dated October 8, 2013, the Tribunal advised the parties that it would hold a half day hearing by conference call to hear submissions regarding whether the Tribunal should dismiss the Application as an abuse of process because the applicant has signed a full and final release with respect to the same subject matter. The Tribunal held the hearing on March 7, 2014.
Submissions
6The applicant submitted that his grievances had been divided into two groups. One group of grievances, dealing with harassment allegations, was to be heard immediately and the second group that dealt with his other Code related allegations was to be dealt with later. The applicant acknowledged that he signed a settlement, but submitted that the settlement resolved only the first group of grievances. The applicant submitted that only some of his issues had been resolved in the settlement and that the Application should proceed regarding the outstanding issues.
7The respondent submitted that the terms of the Memorandum of Settlement (the "Memorandum") which required the applicant to withdraw this Application in unambiguous terms. The respondents also submitted that the Memorandum contained a release in favour of the respondent, (the "Crown") that explicitly released the Crown regarding the events on which the Application was based. The respondents submitted that the applicant provided no information to the effect that his medical condition prevented him from understanding the agreement.
Analysis and Decision
8The Code does not explicitly bar Applications where an applicant has executed a release in favour of the respondents. See Bielman v. Casino Niagara, 2009 HRTO 123. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, however, provides that the Tribunal may make such orders or give such direction in proceedings before it as it considers proper to prevent abuse of its processes. The Tribunal has found on a number of occasions that filing a human rights Application after executing a full and final release can amount to an abuse of process and have dismissed the Applications on that basis. See for example Shams v. Genivar Inc., 2012 HRTO 163, and Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655.
9There is no question that the language used in the release encompassed claims under the Code. The release provision contained in clause 4 of the Memorandum states as follows:
The Grievor and the Union hereby release the Employer, its agents, employees, representatives and officials from any and all actions, claims, causes of action, grievances or complaints of any nature at common law or pursuant to statute, directly or indirectly related to the events giving rise to these grievances and human rights complaint, including but not limited to all claims under the WDHP policy, the Public Service of Ontario Act, 2006, the Ontario Labour Relations Act, the Ontario Employment Standards Act, the Ontario Human Rights Code, the Office of the Ombudsman any other legislation.
10The parties noted that the applicant filed this Application in the recitals to the Memorandum as follows:
WHEREAS the Grievor filed a human rights complaint HRTO File: 2011-08934-I
11As noted, the applicant also agreed to withdraw this Application in clause 5 of the Memorandum as follows:
The parties agree that the above grievances are resolved and hereby withdrawn. The Grievor also agrees to withdraw his HRTO complaint at the Ontario Human Rights Tribunal on a with prejudice basis within 14 days of the signing of this memorandum of settlement
12The applicant submitted that he executed the Memorandum because of the difficulties he faced in travelling to attend the grievance/arbitration proceedings. In Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058, 35 C.H.R.R. 39 (ON S.C.), the Court set out factors for determining whether a release should be set aside. Pritchard was decided under section 34 of the former Code, which invoked bad faith rather than abuse of process, and concerned access to the since repealed investigative procedure of the Ontario Human Rights Commission rather than the right to an oral hearing before the Tribunal. However, the Tribunal has found that the Pritchard factors can be useful in determining whether it would be an abuse of process to proceed with a hearing on the merits: Douse v. Hallmark Canada, 2009 HRTO 1254. The Pritchard factors look to (1) whether the party fully understood the significance of the release; (2) whether the party received sufficient and fair consideration for signing the release; (3) evidence of economic pressure; and (4) evidence of psychological or emotional pressure amounting to duress.
13The Ontario Court of Appeal described the elements of duress in a recent case, Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 at para. 9:
[N]ot 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 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. C.A.), at para. 89. In Stott, the court held that in order for economic duress to be found, the party whom is being illegitimately pressured must be put in position where he has no "realistic alternative" but to submit.
14I do not find that any of the Pritchard factors, or any other factors that might warrant overriding the language of the release, have been established in this case.
15The applicant did not assert that he did not understand the terms of the Memorandum or that the consideration he received was inadequate. Similarly, the applicant presented no evidence of economic pressure or duress. The applicant stated that he found travelling to Thunder Bay from Kenora very difficult and therefore executed the Memorandum to avoid this travel. However, the applicant gave no indication that the Crown sought to exploit the significant travel the applicant was required to undertake or put any pressure on him to settle, such that it could be said that he had no choice. Also, the applicant's primary submission was that the grievance procedure had only dealt with some of his claims and that those aspects of the Application related to his unresolved grievances should continue. There does not appear to be any dispute that the applicant has unresolved grievances with the respondent. The clear terms of the settlement, however, released the respondents from any claims related to the facts on which this Application is based and explicitly required him to withdraw this Application. In these circumstances, I find that to allow the Application to proceed would amount to an abuse of process.
16The Application is dismissed.
Dated at Toronto, this 17th day of June, 2014.
"Signed by"
Douglas Sanderson
Vice-chair