Zealand v. Metro Canada Inc., 2016 HRTO 1040

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Zealand

Applicant

-and-

Metro Canada Inc.

Respondent

-and-

United Food and Commercial Workers Union Canada, Local 175

Intervenor

DECISION

Adjudicator: Mark Hart

Date: August 4, 2016

Citation: 2016 HRTO 1040

Indexed as: Zealand v. Metro Canada Inc.

APPEARANCES

Christine Zealand, Applicant Self-represented

Metro Canada Inc., Respondent Christian Vernon, Counsel

United Food and Commercial Workers Union Canada, Local 175, Intervenor Roberto Henriquez, Counsel

1This is an Application filed on October 16, 2014 and completed on October 31, 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").

2The purpose of this Decision is to determine whether the Application should be dismissed as an abuse of process on the basis of Minutes of Settlement dated July 8, 2015.

Procedural background

3The applicant has been an employee of the respondent company ("Metro") and its predecessor company since December 1987, working in various departments. At the time of filing her Application in October 2014, the applicant was working in the deli department. In general terms, the applicant alleges in the Application that her disability-related needs had not been appropriately accommodated by Metro and that she was experiencing harassment from supervisors and co-workers because of her disability.

4The applicant is a member of the intervenor Union. On October 6, 2014, she filed a grievance pursuant to the collective agreement seeking a transfer to another department and full redress. By Interim Decision, 2015 HRTO 27, dated January 8, 2015, the Tribunal deferred the Application pending completion of the grievance process.

5In the context of the grievance process, the applicant was transferred to the cut fruit department in November 2014 for training purposes, which was one of the areas that she had identified as appropriate for the accommodation of her disability-related needs. The parties engaged in discussions regarding the potential resolution of the grievance, which resulted in Minutes of Settlement being signed on July 8, 2015. The Minutes of Settlement confirmed that the applicant had been put into the cut fruit department at her request, and provided for payment to the applicant of 40 hours at her regular wage.

6By Request for Order filed November 17, 2015, the applicant sought to re-activate her Application. By Response dated December 1, 2015, Metro opposed the applicant's request and took the position that the Tribunal's file should be closed on the basis of the Minutes of Settlement. A Response also was filed by the Union, which takes no position on the applicant's request.

7By Case Assessment Direction dated December 9, 2015, the Tribunal granted the applicant's request to re-activate the Application and requested submissions from the applicant in relation to Metro's position that the file should be closed due to the settlement. Following receipt and consideration of the applicant's submissions, the Tribunal issued a further CAD dated January 6, 2016 directing that a preliminary hearing be held to determine whether the Application should be dismissed as an abuse of process on the basis of the Minutes of Settlement.

8The preliminary hearing proceeded by teleconference on May 9, 2016. I heard evidence, including cross-examination, regarding the settlement from the applicant and from a Human Resources Field Manager employed by Metro who was involved in the settlement discussions. I also heard the parties' submissions on the preliminary issue.

Analysis and decision

9Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended ("SPPA"), 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. This statutory provision has been incorporated into Rule A8.1 of the Social Justice Tribunals Ontario Common Rules which form part of this Tribunal's Rules of Procedure.

10This 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 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.

11It is not this Tribunal's role to assess the appropriateness of the settlement agreement between the parties or to consider whether the settlement agreement addresses all of the issues raised in the Application. Rather, the issue to be determined is whether the settlement agreement is legally binding and final: see King v. Ontario (Health and Long-Term Care), 2011 HRTO 2228.

12Metro's evidence before me is that the terms of settlement were discussed with the applicant and her Union representative, and an agreement in principle was reached. The applicant testified that she did not have a specific recollection of these discussions, although she does not dispute that they must have occurred. Metro's evidence is that the Union representative asked Metro to prepare Minutes of Settlement, and specifically asked that the settlement include human rights issues as having been resolved. The Minutes of Settlement were sent to the Union representative for review.

13A meeting to execute the Minutes of Settlement was scheduled for July 8, 2015. Metro's evidence is that in advance of the meeting, Metro was advised that the Union representative would not be able to attend the meeting, but that the Union had signed the Minutes of Settlement in advance and had reviewed the terms of the Minutes of Settlement with the applicant. The applicant's evidence is that the Minutes of Settlement were not reviewed with her in advance of the meeting on July 8, 2015.

14The meeting proceeded on July 8, 2015 in the absence of the Union representative. While Metro's evidence is that the terms of the Minutes of Settlement were reviewed with the applicant at this meeting, it appears that this was more of a cursory review as opposed to a line-by-line discussion. The applicant's evidence is that she felt pressured to sign the Minutes of Settlement due to her work obligations, and that she signed the Minutes of Settlement without reading the terms.

15The applicant's evidence is that, either later that evening or the following morning, she had the opportunity to review the Minutes of Settlement and realized, in her words, that she had made a "mistake" in signing the settlement. Specifically, at this point in time, the applicant's evidence is that she realized that by signing the Minutes of Settlement, she had given up her human rights claim. However, the applicant nonetheless accepted the benefit of the settlement, in terms of the confirmed transfer and the monetary payment, and took no immediate steps to raise any concern about the settlement with either the Union or Metro. In addition, while the applicant previously had sought legal advice in relation to her human rights issues, she did not consult a lawyer regarding the impact or enforceability of the settlement agreement, on the basis that she did not have the money to do so.

16Subsequently, on October 7, 2015, the Tribunal requested an update from the parties regarding the status of the grievance. This resulted in the applicant's request to re-activate her Application, which as stated above was filed on November 17, 2015, over four months after the Minutes of Settlement had been signed.

17The first issue for me to consider is whether the Minutes of Settlement on their own terms preclude the applicant from proceeding with her human rights Application. The Minutes of Settlement include a release provision which encompasses human rights claims. However, this provision on its own terms relates to claims "arising as a result of the severing of [the applicant's] employment with Metro". No such severance of employment occurred, and the applicant at all relevant times remained a Metro employee. Metro's evidence is that the Minutes of Settlement were drafted on the basis of a pre-populated template which included this language, and that the language was not modified in error. Nonetheless, given the specific language of the release provision, I find that it does not apply to preclude a human rights Application of the nature filed by the applicant in the context of a continuing employment relationship.

18That said, and as noted above, this Tribunal has held that it is an abuse of process to allow a human rights application to continue even in the absence of a release provision: see Solcan, above. In such circumstances, the issue for this Tribunal to address is whether it would be unfair to permit the proceeding to continue having regard to the terms of the Minutes of Settlement and all of the surrounding circumstances. In my view, it would be unfair in the instant case. Metro's evidence is that the settlement was contemplated as resolving all outstanding issues, including the human rights issues that were the underpinning of both the grievance and the human rights Application. In my view, the applicant's own acknowledgement in her evidence that, when she reviewed the agreement on the evening of July 8, 2015 or the following day, she had made a "mistake" by resolving the human rights issues supports the conclusion that the intention of the settlement was to resolve all outstanding issues. Accordingly, in my view, it would be unfair on the face of the terms of settlement and the surrounding circumstances to allow the Application to proceed, in light of the fact that the grievance and the human rights Application were both addressing the same underlying human rights issues, that the settlement addressed both the applicant's desire for a transfer and monetary compensation, and that the evidence of both parties is that the settlement extends to encompass the outstanding human rights issues.

19The next question is whether there is any proper basis to set aside the Minutes of Settlement. The applicant states that she signed the Minutes of Settlement under "duress". While a settlement may be set aside if an applicant was under duress at the time she signed it, the test for whether a person has signed a settlement under duress is high and requires an element of threat or coercion: see Kailani v. Securitas Canada, 2009 HRTO 1183. No such element of threat or coercion exists here. At its very highest, the applicant's evidence is that she felt pressure to sign the settlement due to her work obligations and fear of being criticized by her colleagues. There is no evidence that anyone from Metro exerted pressure on the applicant in the context of the July 8, 2015 meeting.

20The applicant's next assertion is that, due to the nature of her disability, she was unable to review and understand the Minutes of Settlement in the context of the July 8, 2015 meeting, and signed the settlement to get herself out of the meeting. In order to succeed with an assertion that, because of a disability, an applicant was incapable of agreeing to the terms of a settlement that was signed by her, there needs to be specific medical evidence that supports such an assertion: see Dickson v. General Motors of Canada Limited, 2013 HRTO 1347 at para. 30. While the applicant has filed general medical documents regarding the nature of her disability, no specific medical evidence has been provided by her to support that her disability prevented her from reviewing and understanding the terms of the Minutes of Settlement or from requesting further time to have an opportunity to do so.

21As a result, I find that the applicant has failed to present evidence that provides support for setting aside the settlement agreement. In these circumstances, I find that it would be an abuse of process to allow the Application to proceed in the face of the Minutes of Settlement.

22In making this determination, I have focused on the allegations raised in the Application as filed, which extend to October 2014 prior to the applicant's transfer to the cut fruit department. I am aware from materials filed by the applicant that she may have experienced further issues during her time in the cut fruit department, both in the period leading up to July 8, 2015 and thereafter. The applicant has not filed a Request for Order to amend her Application to raise these allegations. I told the applicant at the preliminary hearing on May 6, 2015 that, at that stage of the proceeding and in the absence of a request to amend, I was not prepared to consider a potential amendment to her Application. However, I also told the applicant that, if she wished to raise such allegations, she needed to do so by filing a fresh application with this Tribunal or by pursuing a fresh grievance under the collective agreement. I further raised with the applicant the one year time period for filing an application under the Code, and told her not to await this Decision before deciding whether to proceed with a fresh human rights application or grievance. Nothing in this Decision should be taken as any determination one way or another as to whether the applicant can proceed with allegations of a violation of her rights under the Code in relation to events that occurred after her transfer to the cut fruit department in November 2014 and/or after the signing of the Minutes of Settlement on July 8, 2015.

ORDER

23For all of the foregoing reasons, the Application is dismissed as an abuse of process on the basis of the Minutes of Settlement signed on July 8, 2015.