HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jane Mauch Applicant
-and-
Sanjay Singh Respondent
-and-
Loblaw Companies Limited Intervenor
DECISION
Adjudicator: Geneviève Debané Date: January 6, 2015 Citation: 2015 HRTO 13 Indexed as: Mauch v. Singh
APPEARANCES
Jane Mauch, applicant Self-represented
1This Application alleges discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on the basis that the applicant’s rights has been infringed on the grounds of her age, family status, and reprisal. The Application also alleges discrimination on the basis of association with a person identified by these grounds.
2On March 24, 2014, the Tribunal directed that a summary hearing would be held to determine whether the Application should be dismissed pursuant to section 45.1 of the Code, as an abuse of process, or on the basis that it had no reasonable prospect of success. The respondent was directed not to file a Response to the Application.
3On July 3, 2014 the Tribunal issued Interim Decision 2014 HRTO 973 which granted Loblaw Companies Limited’s (“Loblaws”) Request to intervene.
4On October 10, 2014, the Tribunal conducted the summary hearing. Neither the respondent nor the intervenor participated at the summary hearing. As is the Tribunal’s practice, the Tribunal waited until thirty minutes before proceeding. Since the respondent and the intervenor did not file Responses to the application or participate at the summary hearing, this Decision relies solely on the applicant’s version of events.
Background
5The applicant was employed by Loblaws until her termination from employment which occurred on May 30, 2012. The applicant filed Application 2012-11714-I on June 6, 2012 against a number of individuals and corporations, including Loblaws Companies Limited, Wadland Pharmacy Limited and the respondent Mr. Singh (the “2012 Application”). The applicant’s spouse also filed an Application with the Tribunal with respect to the termination of his employment.
6On March 28, 2013, the applicant and her spouse attended a mediation at the Tribunal in respect of the 2012 Application and her spouse’s Application. Later that night, at home, the applicant and her husband executed the Minutes of Settlement and its attached Releases and Indemnities. These were returned to the respondent’s counsel as required by the Minutes of Settlement.
7Pursuant to the Minutes of Settlement, the applicant had to execute a Form 25, confirming to the Tribunal that the 2012 Application had been settled. However, the applicant did not file the Form 25.
8On June 27, 2013, after a number of correspondences from the Registrar to the parties were unanswered by the applicant, the Tribunal issued a Case Assessment Direction. The Tribunal directed that the applicant had to file a signed Form 25 or otherwise state her intentions with regards to the 2012 Application within seven days of the date of the Case Assessment Direction failing which Tribunal may dismiss the 2012 Application as abandoned. The deadline issued to the applicant was to respond by July 5, 2013 and the applicant did not respond. On July 12, 2014, the Tribunal therefore issued Decision 2013 HRTO 1221, which dismissed the 2012 Application as abandoned. The applicant has never sought reconsideration of this Decision and the time for doing so has long passed.
9On February 24, 2014, the applicant filed the current Application naming only Mr. Singh as a respondent.
The Issues
10This Application includes numerous allegations, both pre-dating and post-dating the Minutes of Settlement and also includes allegations that the Minutes of Settlement have been breached. Having reviewed the Application and the applicant’s oral submissions the following issues must be determined by the Tribunal.
a. With respect to the allegations that pre-date the signing of the Minutes of Settlement, whether these should be dismissed pursuant to s. 45.1 of the Code or as an abuse of process;
b. With respect to the allegations that post-date the signing of the Minutes of Settlement, whether they should be dismissed on the basis that they have no reasonable prospect of success; and
c. Whether the Tribunal should make any determination with respect to the allegations of breaches to the Minutes of Settlement, given that this Application is not a breach of settlement application.
Abuse of Process
11During the Summary Hearing I spent some time determining the chronology of the events in this Application. I find that the following events occurred prior to March 28, 2013, the date of the signing of the Minutes of Settlement:
a. All allegations relating to the termination of her employment;
b. Any allegations that the Mr. Singh discriminated and/or harassed the applicant during the course of her employment;
c. The allegation that she was not offered alternate employment (the applicant asserted that she made this request a few days after her termination from employment);
d. The allegations which are identified at page 9, paragraph 2 of the Application, in which she asserts that she lost employment and/or her hours were reduced at other pharmacies as a result of filing the initial application; and
e. The allegations contained at page 11, paragraph 7 of the Application in which the applicant states that Mr. Singh convened a meeting with staff shortly after the termination of her employment.
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, 2010 HRTO 1655.
13In this case, the former Tribunal proceeding regarding the 2012 Application resulted in a mediated settlement between the parties. The Minutes of Settlement includes the requirement that the applicant execute a Release and Indemnity (the “Release”) in which the applicant releases Loblaws, and its employees, which includes Mr. Singh, from all claims with respect to her employment and cessation of employment. The Release also includes an acknowledgment that the applicant has no other claims under the Code.
14The applicant provided a number of reasons why she should not be bound by the Minutes of Settlement and Release, including that she was not required to sign the Minutes of Settlement immediately at the Mediation. The applicant stated that she was given the documents to sign at the Mediation but that she was told she should go home and review them and if she agreed with them, that she should execute and mail these to Loblaw’s counsel. She states that she and her husband went home that night and signed the Minutes of Settlement and the Release because they were stressed and wanted the matter to be concluded. She states that at the Mediation there was no discussion that the applicant would have to sign a Release.
15The applicant also takes the position that she does not seek to vitiate the Minutes of Settlement themselves, but only the attached Release. Therefore, the applicant could keep the benefits of the settlement including any financial compensation. The applicant also takes the position that the agreement is unconscionable and that she did not have legal representation at the time that she signed the Minutes of Settlement.
16Though the applicant states that she was under duress, this is a high threshold to meet. Black’s Law Dictionary, 8th ed. (St. Paul, MN: Thomson West, 1999), gives the following as one of the definitions of “duress”:
Broadly, a threat of harm made to compel a person to do something against his or her will or judgment, especially a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition.
17“Economic duress” is also specifically defined in Black’s, not in terms of a party’s financial circumstances per se, but the threat of financial harm:
… an unlawful coercion to perform by threatening financial injury at a time when one cannot exercise free will.
18The Ontario Court of Appeal described the elements of economic duress in Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 at paras. 8-9:
There is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis.
However, not 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. [“Stott”], 1988 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. C.A.), at para. 89.
19In 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.
20I find that any duress or stress that the applicant felt was not as a result of illegitimate pressure exerted by the respondents in the 2012 Application. The applicant was given time to review the Minutes of Settlement and Release and could have obtained legal advice at that time. Instead, the applicant signed the Minutes of Settlement and Release, accepted the consideration offered, and then proceeded to refuse to abide by the corresponding commitments that she had agreed to. I find that there is no basis on which she should be permitted to resile from the commitments that she made pursuant to the Minutes of Settlement.
21Having considered the matter I find that the applicant’s overall conduct in this matter is an abuse of process.
22The applicant refused to file the Form 25 in the 2012 Application, and when the Tribunal sought submissions from the applicant she failed to respond to this request. The applicant states that she did not file submissions at that time because there was a fire at her house on July 11, 2013. However, I note that the deadline that had been given by the Tribunal to the applicant to provide an explanation was July 5, 2013, which is at least five days before the fire at her home. Ultimately, the 2012 Application was dismissed as abandoned in Decision 2013 HRTO 1221.
23The applicant is trying to relitigate and revive the issues relating to her employment and cessation of employment by filing this Application. I find the filing of this Application as it relates to events with respect to her employment and cessation of employment which occurred on or before March 28, 2013 (the date that she executed the Minutes of Settlement) is an abuse of process and will not be considered by the Tribunal.
Reasonable Prospect of Success
24The Application also alleges that there were acts of reprisal that were committed by Mr. Singh which post-date the signing of the Minutes of Settlement. During the summary hearing the applicant indicated that she did not want to name some of her current employers because she was concerned that she would either be terminated or lose further shifts. It is her belief that Mr. Singh has interfered with her employment prospects, including that her shifts at certain pharmacies have been reduced or eliminated.
25The applicant relies on the fact that she either had conversations with individuals who knew Mr. Singh or that she would see Mr. Singh at work staring at her. The applicant believes that she then suffered repercussions including a reduction in scheduled hours.
26Section 8 of the Code states:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
27In the decision of Noble v. York University, 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraph 33:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
28Having considered this matter and the applicant’s submissions, I find that the applicant has not proposed any evidence that she has or that may be reasonably available to her which would reasonably support that Mr. Singh has reprised against her. The applicant’s evidence in this matter is entirely based on conjecture and speculation. She has not proposed any reasonable basis for her belief that Mr. Singh is linked to any “action taken” by her subsequent employers. Though the applicant strongly believes that Mr. Singh is responsible for her reductions in hours and subsequent employment issues I find that she has no reasonable prospect of establishing that he reprised against her as contemplated by the Code.
Breaches of Settlement
29The Application alleges also that the respondent breached the Minutes of Settlement from the 2012 Application and that the breach constitutes a reprisal. The applicant relies on paragraph 3 of the Minutes of Settlement which provides that “the corporate respondents” were to provide her with a neutral letter confirming the dates of her employment and that their verbal response to any third party enquires seeking a reference shall be neutral and consistent with the letter.
30The applicant states that she is dissatisfied with the letter that she received on April 22, 2013 because it is not neutral. She further believes that she was not given a neutral verbal reference in July 2013 accordance with the letter. The request for a verbal reference was not made to Mr. Singh.
31Though I find that the applicant should have filed a breach of settlement application, I will deal with these allegations in this Application that Mr. Singh has breached the Minutes of Settlement and that this alleged breach is evidence of reprisals by Mr. Singh.
32First, putting aside that subsection 45. 9(3) of the Code requires that a breach of settlement application must be filed within six months of the alleged breach, the applicant has not established that the respondent in this Application has breached the settlement made in the 2012 Application. The respondent in this case is Mr. Singh and he is not required at paragraph 3 of the Minutes of Settlement to provide the applicant with a neutral letter and verbal references consistent with that letter. That is an obligation that is imposed on the corporate respondents, which he clearly is not.
33The Tribunal also finds therefore that the applicant has no reasonable prospect of establishing that Mr. Singh has breached the Minutes of Settlement and these allegations are also accordingly dismissed.
Order
34The Application is dismissed in its entirety.
35In light of my dismissal of the Application I will not consider the letter received on November 24, 2014 from Loblaws’ counsel in which he seeks that the Tribunal reconvene the summary hearing because he did not get formal notice of the Application. I note again though, that the facts as stated in this Decision are entirely the applicant’s version of events. I also need not consider whether the Application should be dismissed pursuant to section 45.1 of the Code.
Dated at Toronto, this 6th day of January, 2015.
“Signed by”
Geneviève Debané Vice-chair