Kai Noi Kinnarath v. Choices Association Inc., 2014 HRTO 936

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kai Noi Kinnarath Applicant

-and-

Choices Association Inc. Respondent

DECISION

Adjudicator: Geneviève Debané Date: June 25, 2014 Citation: 2014 HRTO 936 Indexed as: Kinnarath v. Choices Association Inc.

APPEARANCES

Kai Noi Kinnarath, Applicant Paul Brown, Representative

Choices Association Inc., Respondent Jennifer D. Zdriluk, Counsel

1This is an Application filed pursuant to section 45.9(3) of the Ontario Human Rights Code, R.S.O. 1990 c. H.19 as amended (the “Code”). The applicant had previously filed Application 2012-12441-I against her respondent employer which was settled on March 11, 2013 when the parties executed a document entitled “Minutes of Settlement and Release” (the “Minutes”). The applicant alleges that the respondent has breached these Minutes. The respondent filed a Response denying that it has breached the Minutes.

2In a Case Assessment Direction dated March 6, 2014, the Tribunal directed that a Summary Hearing would be convened to determine if the Application, in whole or in part, should be dismissed on the basis that it has no reasonable prospect of success. This Summary Hearing took place on June 19, 2014, via telephone conference.

3All of the parties participated during the Summary Hearing. Though Mr. Brown is listed as the applicant’s representative, both he and the applicant made oral submissions to the Tribunal.

4For the reasons that follow the Application is dismissed because it has no reasonable prospect of success.

The Minutes

5The Minutes of Settlement contain over 17 clauses, of which the most relevant portions are:

2. The Applicant hereby resigns her employment with Choices effective March 11, 2013 and agrees to provide Choices with a signed letter of resignation in the form attached hereto. (the “resignation clause”)

3. Choices shall provide the Applicant with a letter of employment outlining the Applicant’s seniority and job duties performed while she was an employee of Choices.

4. The applicant agrees that she will refrain from any conduct or statements inimical to the best interests of the Releasee and, particularly shall make no adverse or unfavourable public statements concerning the Releasee or her relationship with it. (the “non-disparagement clause”)

5. The applicant undertakes to keep the Settlement confidential and agrees not to disclose the fact of the Settlement or the terms of the Settlement, to any person other than her immediate family, legal and/or financial advisors, or as required by law. (the “confidentiality clause”)

6. The Applicant acknowledges and agrees that these Minutes incorporate all of the terms and conditions respecting the settlement of any claim arising out of her employment with the Releasee and she acknowledges that there are no other written or oral representations, undertakings, agreements, terms or conditions other than those expressly set forth in these Minutes. (the “express agreement clause”)

The Applicant’s Allegations

6The applicant alleges that some of the respondent’s employees are making slanderous statements about the quality of the care that she provided during the course of her employment. I will not go into the details of these allegations. The applicant, without identifying the relevant paragraph of the Minutes, alleges that these are a breach of the Minutes.

7The applicant also states that some of the respondent’s employees are falsely stating that she was terminated for just cause. The applicant asserts that this is a breach of the resignation clause contained at paragraph 2 of the Minutes.

8The applicant also alleges that she received a letter from the respondent on January 16, 2014 with respect to a pay equity payment. This letter states in part: “Your entitlement is calculated on paid hours from January 1, 2013 to the time of your termination.” The applicant takes the position that the use of the word “termination” instead of “resignation” is a further breach of the resignation clause of the Minutes.

9During the Summary Hearing the applicant also raised the issue that the respondent had disclosed to at least one other person the quantum of the settlement amount that was paid to her and that this is a breach of the Minutes.

DECISION

10In accordance with the usual practice of the Tribunal for summary hearings, no evidence was heard from the parties and the Decision refers solely to the applicant’s allegations and version of events.

11The approach of the Tribunal in a summary hearing has been discussed in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8:

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.

12In this case, in order for the Application to have a reasonable prospect of success, the applicant must establish 1) that the Minutes impose an obligation on the respondent and 2) that the respondent breached this obligation. For the purposes of this decision, I need only consider the first issue – whether the Minutes impose an obligation on the respondent.

13In order to determine whether the Minutes impose an obligation on the respondent, the Tribunal should consider the plain meaning of the entire terms of the Minutes. I note that in the express agreement clause the applicant has acknowledged that these Minutes have incorporated all terms and conditions of the settlement and that there are no other written or oral agreements.

14During the Summary Hearing the applicant acknowledged that the Minutes do not contain any terms which impose on the respondent an express obligation to either maintain the confidentiality of the Minutes or to refrain from disparaging the applicant. The non-disparagement clause and the confidentiality clause only impose obligations on the applicant.

15The applicant cannot use the resignation clause in the Minutes in order to secure the benefits of a non-disparagement clause. The applicant is trying to rely on the resignation clause to create an obligation on the respondent not to disparage her “because she resigned”. This would be contrary to the clear wording of the resignation clause and an unreasonable interpretation of this clause especially in light of the fact that the parties have agreed expressly to a non-disparagement clause which is not to the benefit of the applicant.

16The resignation clause imposes an obligation on the applicant to resign from her employment. There is no dispute that this in fact occurred. The resignation clause does not prevent the respondent from telling people that she was terminated from her employment, even if this is false. Further, the Minutes, read in their entirety, do not put any restrictions on the comments that can be made by the respondent about the applicant.

17During the Summary Hearing the applicant’s representative acknowledged that having reviewed the Minutes that it appeared that the applicant may be in the wrong forum because the non-disparagement clause only applied to the respondent. The applicant indicated that she might pursue her claim of slander in a civil proceeding.

18Therefore, I find that the applicant, even if I accept her allegations as truthful, has no reasonable prospect of establishing that the respondent breached any of the clauses of the Minutes of Settlement.

ORDER

19The Application is dismissed.

Dated at Toronto, this 25th day of June, 2014.

“Signed by”

Geneviève Debané Vice-chair