Mohamed Youssef v. Gemstar Security Services Ltd., 2015 HRTO 1345

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohamed Youssef Applicant

-and-

Gemstar Security Services Ltd. Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: October 8, 2015 Citation: 2015 HRTO 1345 Indexed as: Youssef v. Gemstar Security Services Ltd.

APPEARANCES

Mohamed Youssef, Applicant

Semone Coghiel and Iesha Coghiel-Streete, Representatives

Gemstar Security Services Ltd., Respondent

Adrian Jakibchuk, Counsel

1This is an Application dated December 19, 2014, alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In brief, the applicant was employed by the respondent company commencing August 6, 2013, initially as a security guard, then as a liaison officer and finally as a lead hand. The applicant alleges that he has a disability and that his disability was a factor in the respondent’s decision to terminate his employment on December 19, 2014.

3The purpose of this Interim Decision is to address the respondent’s request for this Application to be dismissed as an abuse of process, on the basis of a termination agreement dated December 18, 2014, and signed by the applicant on December 20, 2014.

4An in-person preliminary hearing in relation to this preliminary issue was held on July 16, 2015. At the preliminary hearing, I heard evidence from two witnesses called by the respondent: Tony Piscitelli, the respondent’s Human Resources Manager; and Jason Campo, an Account Executive with the respondent who attended the applicant’s termination meeting on December 19, 2014 together with Mr. Piscitelli. I also heard evidence from the applicant relevant to the preliminary issue.

5I also have reviewed and considered the parties’ written and oral submissions regarding this preliminary issue.

Evidence

6The applicant was called into a meeting on December 19, 2014 with Mr. Piscitelli and Mr. Campo that commenced at 11:30 a.m. The purpose of the meeting was to terminate the applicant’s employment with the respondent, although this was not disclosed to the applicant in advance of the meeting.

7At the meeting, the applicant was presented with a letter dated December 18, 2014 confirming that his employment with the respondent was being terminated on a without cause basis. The letter states that, in order to assist the applicant with this transition, the respondent was offering him a “severance package” of two weeks plus one additional week for a total gross pay of $1,680.00. He also was informed that his health benefits would continue for the next four weeks, and would terminate on January 16, 2015. The respondent further offered to provide the applicant with a reference letter upon acceptance of the offer. The letter went on to state that, should the respondent not receive acknowledgement or acceptance of the offer by December 29, 2014, the applicant would be paid only his minimum entitlement under the Employment Standards Act, 2000 (“ESA”).

8The evidence before me indicates that the applicant was given an opportunity to review the termination letter during the course of the meeting. The applicant asked the reason for the termination of his employment, to which Mr. Piscitelli replied that it was a business decision. The applicant also asked whether he would be charged for damage to a vehicle that had been driven by him, and was told no. He was informed that he would be paid his accrued vacation pay in addition to the amount of the severance package. The applicant said that he would have a lawyer look at the termination letter before he signed it. The meeting then ended, and the applicant was given the opportunity to retrieve his property before leaving the premises.

9There is a dispute in the evidence before me as to what was said in the meeting about the nature of the termination letter that the applicant was being asked to sign. Mr. Piscitelli’s evidence is that he told the applicant that the letter was a “final release offer”. His typewritten notes of the meeting, which he testified were made on the same day, support that Mr. Piscitelli told the applicant that he was being offered a “final release”. Mr. Piscitelli testified that, by referring to the termination letter as a “final release offer”, he meant that, if the applicant accepted the offer, the respondent and the applicant would be parting ways on good terms and the applicant would not be pursuing “legal means” against the respondent. However, in his evidence before me, Mr. Piscitelli could not recall whether he actually explained this to the applicant in the meeting.

10Mr. Campo was present at the December 19, 2014 meeting as a witness. He too made typewritten notes of the meeting on the day it occurred, which are in evidence before me. In his testimony before me, Mr. Campo stated that he recalled Mr. Piscitelli referring to the termination letter as a “final release letter”. This specific language does not appear in Mr. Campo’s notes of the meeting, although the notes do say that Mr. Piscitelli presented the applicant with “a letter to of release” (sic). Elsewhere in his notes, Mr. Campo records Mr. Piscitelli referring to the termination letter as a “severance package” and an “offer of severance”. On cross examination, Mr. Campo testified that he could not recall one way or another whether the applicant was told that he would be signing away his legal rights if he accepted the offer.

11The applicant testified that, at the termination meeting, no-one explained to him that by signing the termination letter, he would be abandoning his right to pursue legal action against the respondent. The applicant also denies that either Mr. Piscitelli or Mr. Campo used the term “final release” or even “release” during the course of the termination meeting.

12On the afternoon of December 19, 2014, the applicant wrote to Mr. Piscitelli to ask when the monies referenced in the termination letter would be paid if he accepted the offer submitted to him. Mr. Piscitelli replied that if he received the signed agreement by Monday morning (December 22, 2014), he could have the monies deposited into the applicant’s bank account with the next payroll on December 24, 2014. Otherwise, the monies would be paid out with the following payroll on January 9, 2015. The applicant replied that he would send the signed agreement in with his daughter, who also was employed by the respondent, over the weekend and she would put it under the door of Mr. Piscitelli’s office. This was done, and the monies referenced in the termination letter were sent out to the applicant on December 24, 2014.

13Above the applicant’s signature on the termination letter, it is stated: “I accept the termination agreement as laid out in the above letter”.

14The applicant did not, in fact, consult a lawyer prior to signing the termination letter. He states that he did not do so because he did not have the money to pay for a lawyer, and also because, given the impending holiday period, he assumed that no lawyer would be available to assist him.

15Late in the evening on December 19, 2014, the applicant completed and sent to the Tribunal the Application form which commenced this proceeding. The Tribunal’s records indicate that the completed Application form was received on December 19, 2014 at 11:10 p.m. This was before the applicant signed the termination letter on December 20, 2014 and before he was paid the monies referenced in the termination letter on December 24, 2014.

16The Tribunal sent the Application to the respondent by letter dated December 29, 2014. At this time, the respondent had not yet provided the applicant with a reference letter. Given the respondent’s position that the applicant had violated the terms of the termination agreement by filing an Application with this Tribunal, the respondent did not provide the applicant with a reference letter.

17For the purpose of this Interim Decision, I am prepared to accept that Mr. Piscitelli referred to the termination letter as a “final release offer” during the course of the termination meeting. However, given that neither Mr. Piscitelli nor Mr. Campo can recall whether this term was explained to the applicant, I have no actual evidence upon which to find that Mr. Piscitelli explained to the applicant that by signing the termination letter, he was giving up his right to pursue legal action against the respondent, including his ability to file an Application under the Code.

Analysis and Decision

18Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

19This Tribunal has repeatedly held that it is an abuse of process for an applicant to seek to raise before this Tribunal allegations that were the subject of a settlement agreement: see for example Solcan v. Kitchener (City), 2011 HRTO 2205 (“Solcan”) at paras. 41 and 42 and the cases cited therein. As stated in Solcan, the doctrine of abuse of process can be applied even where the settlement does not include a full and final release, where it is apparent that the parties intended to resolve all outstanding employment issues: “the question is whether it would be unfair to permit the proceeding to continue having regard to the terms of the memorandum of settlement and all of the surrounding circumstances”: see para. 42. See also Dickson v. General Motors of Canada Limited, 2013 HRTO 1347 (“Dickson”) at paras. 14 to 41.

20There is no question that in the instant case, the applicant was not required to sign a document called a “full and final release” in order to accept the offer made to him by the respondent. Further, there is no question that the termination letter itself does not anywhere use the term “release”. As stated above, this is not determinative of the issue of whether allowing this Application to proceed would amount to an abuse of process.

21In my view, the governing principle to be gleaned from the Solcan and Dickson decisions is that it would be unfair to permit a proceeding to continue before this Tribunal where it is apparent from the terms of the settlement agreement and all of the surrounding circumstances that the parties intended to resolve all outstanding employment issues.

22The difficulty I have in this matter is that I am simply unable to conclude based upon the evidence before me, on the basis of the language of the termination letter as signed by the applicant and all surrounding circumstances, that all parties to the agreement intended to resolve all outstanding employment issues, including any claims before this Tribunal under the Code.

23Clearly, on the basis of the evidence of Mr. Piscitelli, this was the respondent’s intention. I also have accepted that Mr. Piscitelli referred to the termination letter as a “final release offer” during the course of the termination meeting. But the evidence before me does not support that the respondent’s intention was explained to the applicant, either in writing in the termination letter or orally at the termination meeting, nor does the evidence support that the applicant understood that by signing the termination letter and accepting the respondent’s offer, he would be foregoing his right to proceed with an application before this Tribunal under the Code.

24I appreciate the point made by respondent counsel in cross-examination of the applicant that the termination letter clearly gave the applicant a choice: either accept the respondent’s offer or be paid his minimum entitlements under the ESA. I also accept respondent counsel’s point that, in being offered this choice, it ought reasonably to have been clear to the applicant that there were “strings” or consequences attached to him accepting the respondent’s offer.

25The problem I have is that it is not clear to me, nor would it have been to the applicant, what exactly these “strings” or consequences were. The termination of a person’s employment potentially gives rise to legal rights in a variety of different fora. Under the ESA, the employee has the right to receive certain minimum entitlements. At common law, the employee may have the right to receive a further amount in lieu of “reasonable notice” where the dismissal is without cause. In addition, if the employee believes that her or his rights under the Code have been infringed, the employee may have certain entitlements under the remedial provisions of the Code, which are not limited to “reasonable notice” damages or the minimum ESA entitlements and which also include the right to be compensated for injury to dignity, feelings and self-respect. In addition, depending upon the circumstances of the dismissal from employment, the employee may have rights that can be pursued under other legislation, including the Workplace Safety and Insurance Act, the Occupational Health and Safety Act, the Labour Relations Act or provisions of the ESA that give rise to greater remedies than an employee’s minimum entitlements.

26It is in the context of this complex interplay of various legal rights that may arise upon termination of employment that I find a lack of clarity as to what rights the parties intended the applicant would be giving up by agreeing to the offer made in the termination letter. Do I have a basis in the evidence to conclude that it was the parties’ intention that by accepting the offer, the applicant was giving up all potential rights that he may have upon termination of his employment, as argued by the respondent? Or given that the termination letter characterizes the offer as a “severance package” and includes reference to the applicant’s minimum entitlements under the ESA, would it be reasonable to infer that the parties’ intention was that the applicant would only be giving up his right to “reasonable notice” damages at common law and his minimum entitlements under the ESA? That, in my view, is entirely unclear on the basis of the language of the termination letter and the evidence as to what was said during the termination meeting.

27In these circumstances, in my view, it is appropriate for me to have regard to the legal principle that, where there is uncertainty or ambiguity, the terms of an agreement should be interpreted against the interests of the party that drafted the agreement, which in this case was the respondent. By drafting the termination letter, the respondent had the opportunity to eliminate this uncertainty and be clear that by accepting the offer, the applicant was giving up his right to pursue legal action against it in any fora, including by way of an application before this Tribunal under the Code. The respondent further had the opportunity at the termination meeting to bring home to the applicant and be clear about the “strings” or consequences attached if he accepted its offer. As the respondent failed to take these steps, I am unable to conclude that it was both parties’ intention to resolve all outstanding employment matters, including potential claims under the Code, by entering into the termination agreement, and am therefore unable to conclude that it would be unfair to allow this Application to continue.

28The respondent also submitted that the timing of the filing of the Application was curious, given that the applicant filed the Application late on the evening of his termination and before he had signed the termination agreement. I was asked by the respondent to infer from this that the applicant knew that his Application would be barred if he signed the termination agreement, and so he hastened to file the Application before he did so. The problem I have with this submission is that, if the termination agreement did in fact bar the applicant from proceeding with his Application, it simply does not matter whether the Application was filed before or after he signed it. In my view, an equally valid inference to draw from these circumstances is that the applicant filed the Application because he did not understand that he was prevented from doing so by signing the termination agreement.

29Accordingly, in all of the circumstances, I deny the respondent’s request for the Application to be dismissed as an abuse of process on the basis of the termination agreement. As a result, the Application will proceed further in the Tribunal’s process.

Next steps

30I note from the Application and Response that all parties have agreed to mediation. As a result, the next step in the process will be for the Tribunal to schedule mediation for the parties.

31I also am aware from the file that the respondent has raised an objection to certain allegations having been raised by the applicant for the first time in his Reply (While the applicant did not file a Reply in the proper form, I have treated his “Response to Gemstar’s Allegations” dated March 13, 2015 as constituting the applicant’s Reply. This is the document in which the applicant makes the allegations contested by the respondent.)

32If the parties are unable to resolve this matter through mediation, then the appropriate process is for the respondent to file a Request for Order (Form 10) seeking to strike any new allegations from the Reply. If the applicant is indeed seeking to raise new allegations in this proceeding which are not set out in the Application, then the appropriate course of action is for the applicant to file a Request for Order seeking to amend the Application to include any such new allegations.

33Finally, in advance of the preliminary hearing, the applicant filed a Request for Order seeking production of certain documents from the respondent. I ruled that the requested documents were not relevant to the preliminary issue before me, without prejudice to the applicant’s ability to request production of these documents if they were not produced by the respondent at the appropriate time in accordance with the parties’ disclosure obligations under the Rules.

ORDER

34For the foregoing reasons, I hereby make the following order:

a. The respondent’s request for the Application to be dismissed as an abuse of process is denied; and

b. The Tribunal will proceed to schedule mediation in this matter.