Seeraj v. Ina Grafton Gage Nursing Home, 2015 HRTO 1448

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Judy Seeraj Applicant

-and-

Ina Grafton Gage Nursing Home Respondent

DECISION

Adjudicator: Kathleen Martin Date: October 29, 2015 Citation: 2015 HRTO 1448 Indexed As: Seeraj v. Ina Grafton Gage Nursing Home

APPEARANCES

Judy Seeraj, Applicant Self-represented

Ina Grafton Gage Nursing Home, Respondent James G. Knight, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") on August 19, 2014, alleging discrimination with respect to employment because of age. The applicant alleges that she was discriminated against by being disciplined, subjected to harassment, and in being terminated from her employment. As a remedy the applicant seeks "standard severance pay plus damages".

2The respondent filed a Response seeking early dismissal of the Application. The respondent states that the applicant filed a grievance regarding her termination and that the matters in the Application were settled and a full and final release has been signed by the applicant with respect to the same matter.

3The Tribunal scheduled a preliminary hearing on August 11, 2015 to address whether or not the Application should be dismissed on the basis that another proceeding has appropriately dealt with the subject matter of the Application (s. 45.1). By Case Assessment Direction dated August 10, 2015, the Tribunal also directed that the parties address whether or not to proceed with the hearing would amount to an abuse of the Tribunal's process.

4At the hearing, the Tribunal heard evidence and submissions from the applicant and submissions from the respondent. The Tribunal also marked thirteen documents as exhibits on consent of the parties subject to the respondent's clarification that where the documents contained additional notations of the applicant their consent did not extend to the truth of the content of the notations.

5For reasons that follow, the Application is dismissed. I find that it would be an abuse of process to proceed with the Application given that the parties have entered into Minutes of Settlement to resolve any claim the applicant had or could have under the Code.

Overview of Events

6The following facts are based on the facts set out in the Application and the applicant's evidence in the hearing.

7The applicant was employed as a Personal Support Worker ("PSW") with the respondent since 1984. The applicant states that after a return to work in February 2013, there was an agreement that she would only perform clerical nursing duties and refrain from assisting other PSW's with patient care. The applicant alleges that notwithstanding this agreement, she was constantly harassed and bullied by co-workers who were resentful of her assigned duties. The applicant states that eventually management mandated that she return to PSW duties which she unwillingly obliged.

8The applicant alleges that on August 7, 2013, she received a warning letter and on August 25, 2013 was terminated (in each case for an alleged work performance issue). The applicant alleges that she was dismissed "just before turning 60".

9Prior to filing the Application, the applicant filed grievances on August 15, 2013 and September 3, 2013. The former grievance alleged that the applicant was unjustly disciplined and sought, among other things, that the discipline be removed and that the respondent cease and desist its intimidation of the applicant. The September 3, 2013 grievance alleged unjust termination and sought that the discipline be removed, the record and member be made whole and such other relief as may be appropriate.

10At the time, the applicant filed the Application, the applicant referenced that there was another proceeding dealing with the subject matter of the Application but asserted that the grievance(s) did not address the human rights violation of age discrimination or workplace harassment.

11There is no dispute that after the applicant filed the Application, the parties (the applicant along with her union and the respondent) attended an arbitration regarding the applicant's termination grievance on September 18, 2014, at which time the parties engaged in a mediated settlement process. This process resulted in Minutes of Settlement ("MOS") signed by the applicant, a representative of her union and the respondent. Among other things, the preamble to the MOS references the termination grievance and provides that the parties have agreed to enter in these Minutes of Settlement in "full and final resolution of any and all outstanding grievances". In addition, the terms of the MOS include the following:

• Rescission of the letter of termination and replacement of it with a voluntary resignation from the Grievor (i.e the applicant in this proceeding);
• Payment of compensation pursuant to the Employment Standards Act, 2000;
• Payment of an additional amount of compensation as damages pursuant to the Code in "full compromise and settlement of what the Employer understands to be the Grievor's actual or potential allegations under the Code, namely that she has disabling conditions that were not accommodated... and that the payment of damages...fully resolves any claim the Grievor has or could make under the Code...";
• A letter of reference;
• The Grievor's acknowledgement that she has read and understands the terms of the Minutes of Settlement, has had the terms explained to her and is signing the Minutes of Settlement voluntarily and without duress; and
• The Union and the Grievor agreeing that the settlement is in full and final and complete settlement of all claims arising from the Grievor's termination dated August 30, 2013 and in relation to any outstanding grievances.

12As indicated above, I heard evidence from the applicant about the mediated settlement process that led to the MOS being signed.

13The applicant testified that she attended along with two union representatives, a union steward and a union counsel. The applicant states that union counsel had been at an earlier arbitration with her and she "trusted him". The applicant states that when she reviewed the initial draft of the MOS, she raised concerns about a few issues one of which was the language referring to "disabling conditions not being accommodated". The applicant states that she did not suffer anything like that and that the union counsel stated that the language would be taken out. Other issues the applicant raised – a uniform allowance issue and inclusion of a letter of reference – were addressed either in the MOS or separately in the final draft.

14The applicant testified that one of the union representatives read over the final draft of the MOS to her and that she felt "pressured and bullied" to sign the MOS by the representative's actions. When asked to clarify what she meant by this, the applicant agreed that she meant that she felt "rushed" by the union representative although she stated it was in a "quiet way". The applicant stated that she said in a low voice to the union representative, "oh my goodness, I can't retain any of this" but did not state that she asked for any additional time. The applicant stated that the MOS were in front of her but she did not read them over again before she signed them. The applicant stated that she was not forced or pressured to sign by the respondent's representatives and that most of her interactions were with the union representatives and her counsel.

15After she signed the MOS and the resignation, the applicant states that she waited alone by the reception area for around 45 minutes and then joined the union representatives for lunch. The applicant stated that later that day she noticed that the reference to her having had "disabling conditions" was in the MOS that she signed. The applicant stated that she called the union about it but acknowledged that she did not raise the issue in writing nor did she raise the issue with the "company" because this was "more of a union thing". The applicant stated that she understood she had resigned and that she received the monthly payments as set out in the MOS.

16When asked after cross-examination if the applicant wished to clarify any of her evidence, the applicant stated that she did not foresee leaving her employment at the time she did and is asking if the respondent can offer her "a little bit more".

The Parties' Submissions

17The respondent argued that the Application should be dismissed on the basis of s. 45.1 and abuse of process. The respondent emphasized that the Tribunal should not hear from the applicant about issues that could have been, and in its view were adequately and completely, dealt with in another proceeding. The respondent characterized this other proceeding as a "cherished and longstanding" process under the Labour Relations Act that the Tribunal has no difficulty deferring to in various circumstances. The respondent highlighted the language in the MOS including those references above and submitted that there was no evidence of any bullying or pressure. The respondent submits that the applicant's evidence that she was "hurried" is of no legal significance. Indeed, the respondent submitted that based on the evidence, the applicant could not claim she was hurried given that a document was presented, the applicant had no difficulty understanding and reading English, the applicant raised specific issues about the document and those issues were addressed with the exception of the reference to the disabling conditions. The respondent states that the inclusion of this term does is not relevant to the issue before the Tribunal and in any event the applicant was aware of its inclusion the day she signed the MOS but still elected, without complaint, to accept the compensation and other terms of settlement.

18The respondent urged the Tribunal to find that the resolution as set out in the MOS was intended to be comprehensive and address all human rights issues including harassment and age discrimination. While the respondent submitted that the Tribunal should determine the issue under s. 45.1 to underscore the importance of the settlement process in the labour arbitration process, the respondent also urged the Tribunal to find that in the specific context of this case, having signed off on the MOS, it would be an abuse of process to continue with the Application.

19The applicant made only brief oral submissions. While I asked the applicant to respond to the respondent's submissions regarding the language in the MOS and abuse of process, the applicant did not respond in a substantive way but instead limited her submissions to a request that it not be dismissed. The applicant stated that she is asking to get "a little bit more" and that is her only issue. The applicant also stated that the workplace harassment and age discrimination was "neglected" in the MOS and that this is where she felt she was "short-changed".

20In her earlier written submissions, the applicant also raised the concerns expressed in her evidence about the inclusion of language of her having had disabling conditions (which she disputes) and that she forced, pressured and bullied to "quickly sign the agreement".

Analysis and Decision

21Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with the rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

22In addition, section 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. See also Rule A8.1 of the Social Justice Tribunals Ontario Common Rules found in Part 1 of the Human Rights Tribunal of Ontario's Rules of Procedure.

23While in this case, the respondent relied on both section 45.1 and abuse of process to support its argument that the Application should be dismissed, I find it appropriate to determine the issue before me based on abuse of process principles.

24The Tribunal has dismissed applications as an abuse of process where an applicant seeks to raise before the Tribunal allegations that were the subject of a settlement agreement: see for example Solcan v. Kitchener (City), 2011 at paras. 41 and 42 and the cases cited therein. The Tribunal has stated that "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 Messiah v. Snap-on Tools of Canada, 2010 HRTO 115 at para. 42.

25In this case, I am satisfied that it would unfair to permit the Application to continue. In the context of an arbitration proceeding into the applicant's termination grievance that took place after the Application was filed, the parties engaged in a mediated settlement process. On its face, the MOS not only reflect a full and final settlement of the termination and other grievances, but also contains express language indicating that the payment of compensation is in full compromise and settlement of what the respondent understood to be the applicant's actual or potential violations under the Code, and that the payment of damages "fully resolves any claim the Grievor (i.e applicant) has or could make under the Code." In the face of this clear language, I am satisfied that the parties intended to resolve all claims the applicant had or could have under the Code in respect of her employment with the respondent including any claims of harassment and age discrimination under the Code.

26There is nothing in the surrounding circumstances that would justify a different result.

27While the applicant had submitted in her written submissions that she felt bullied and pressured, the oral evidence at the hearing did not support a finding of duress or other illegitimate pressure which would justify proceeding in the face of these MOS. Further, even accepting that the applicant genuinely "felt" rushed, I do not find that this provides a legal basis to set aside the MOS particularly given the applicant's evidence that she was rushed in "a quiet way". In fact, on the applicant's evidence, I agree with the respondent's submission that objectively the applicant was not rushed insofar as she was presented with a draft, made suggestions to amend the document, had the document read to her and had an opportunity to read the document herself before she signed it. The fact that the applicant did not read the document does not provide a basis to set aside MOS.

28In summary, the parties entered into Minutes of Settlement which resolved any and all claims the applicant had or could have under the Code which in my view is inclusive of the allegations in the Application. While I appreciate the applicant now believes she was "short-changed", the applicant has not provided any basis upon which she should be permitted to resile from the Minutes of Settlement. As a result, I find that it would be an abuse of process for the Application to continue. The Application is dismissed.