Iad Abdul-Rahman v. Ontario (Natural Resources and Forestry), 2016 HRTO 1151

Human Rights Tribunal of Ontario

B E T W E E N:

Iad Abdul-Rahman Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Natural Resources and Forestry and Tyler Wilson Respondents

A N D B E T W E E N:

Iad Abdul-Rahman Applicant

-and-

Ministry of Natural Resources and Forestry Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: August 30, 2016 Citation: 2016 HRTO 1151 Indexed as: Abdul-Rahman v. Ontario (Natural Resources and Forestry)

APPEARANCES

Iad Abdul-Rahman, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Natural Resources and Forestry and Tyler Wilson, Respondents Peter Dailleboust, Counsel

1The applicant filed two Applications alleging that the respondents discriminated against him contrary to the Human Rights Code, R.S.O. c. H.19, as amended (the "Code"). In particular, the applicant alleged that the personal respondent over-monitored, harassed and abused him over the course of his employment with the respondent. He also alleges that the organizational respondent (the "Ministry") discriminated against him by making false allegations against him and terminating his employment in March 2015.

2On March 16, 2015, prior to filing his Applications, the applicant filed a grievance with his union. The applicant's union and the respondent entered into a settlement of the grievance which was signed by the applicant. In their Response, the respondents requested that the Tribunal dismiss the Applications due to the settlement and full and final release signed by the applicant.

3The Tribunal held a preliminary hearing to address this issue. At the hearing, I heard submissions from the applicant and the respondents.

4I have considerable sympathy for the applicant, who is an immigrant to Canada and who spoke passionately about the difficulties he has faced since the end of his employment with the respondent Ministry. However, I must find that the applicant has not provided any legally valid reason why he should not be bound by the release he signed. As a result, it would be an abuse of process for this Tribunal to proceed with the Applications. In making this finding, I wish to make clear that I am not suggesting that the applicant has acted in bad faith in filing his Applications. However, even in the absence of bad faith, it would be an abuse of process for the Tribunal to proceed with the Applications in a situation where the parties have agreed to a full and binding settlement that covers the allegations contained in the Applications.

Factual Background

5The applicant is a highly educated and skilled individual. He was employed by the respondent as an aviation safety officer from December 2012 to March 2015. In December 2014, the applicant alleged harassment by the personal respondent to his Acting Director. The Acting Director contacted the Workplace Discrimination and Harassment Prevention ("WHDP") branch of the Ministry of Government Services. A WHDP advisor determined that the applicant's complaint did not fall within the scope of the WHDP policy.

6Around this same time, the Ministry conducted an investigation of the applicant and ultimately terminated his employment. On March 16, 2015, the applicant filed a grievance with his union in which he alleged that the Ministry dismissed him without just cause and without proper process. Among other things, he alleged a violation of the collective agreement's non-discrimination clause and sought human rights damages in addition to reinstatement and back pay.

7The union referred the grievance to arbitration and the parties entered into a Memorandum of Settlement ("settlement") on August 25, 2015, the first day of the arbitration. The applicant, his union and a representative of the Ministry all signed the agreement. The settlement states that the parties agreed to a full and final settlement to the grievance and "to all matters with respect to the Grievor's [applicant's] employment on a without prejudice or precedent basis."

8Under the settlement, the Ministry agreed to do the following:

a. remove the letter of termination from the applicant's personnel file and to change the manner of dismissal to a release without cause.

b. seal documents relating to the respondent's investigation of the applicant and take them out of the applicant's employment file.

c. provide the applicant with a letter of employment on Ministry letterhead in the form attached in a schedule to the Memorandum of Settlement.

d. refer any requests for verbal references to the General Manager of Aviation, Forest Fire and Emergency Services and to provide a response that would be consistent with the language in the letter of reference.

e. not to seek restitution from, or take any action against, the applicant for any amounts he allegedly owed to the respondent.

9The Memorandum of Settlement contained a release clause which stated as follows:

The Grievor acknowledges, with the advice of his union representative, that this Memorandum of Settlement constitutes full and final settlement of any and all claims, complaints, grievances or actions arising out of this matter or facts related to this matter that the Grievor has or may have against the Employer, its representatives, employees and officials whether under statute, regulation, policy, contract or at law, including but not limited to the Workplace Safety and Insurance Act, the Public Service Act, the Employment Standards Act, complaints under the Ombudsman Act, the Ontario Human Rights Code and any other employment-related statute.

Applicable Law

10The Code does not explicitly bar applications where a release has been signed by an applicant. However, in several cases, the Tribunal has found 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.

11The reason why the Tribunal may determine that it is an abuse of process to permit an applicant to proceed with an application where he or she has signed a full and final release relates to the principle of finality. When two parties contract to settle legal matters between them, the principle of finality demands that the contract be given effect. Parties are prevented from litigating settled matters, unless there are compelling reasons to disregard the settlement and release.

12The issues I must decide are: (1) whether the release applies to the allegations set out in the Applications and (2) whether there are legally valid reasons to disregard the settlement and the release signed by the applicant. The applicant advances a number of arguments why he should not be bound by the settlement and release. I will deal with each of these arguments in turn.

Does Release Apply to Allegations Contained in Applications?

13The allegations contained in the Applications relate to alleged over-monitoring, harassment and abuse by the personal respondent and false allegations by the Ministry that lead to the termination of the applicant's employment.

14The release clause in the settlement states that the settlement is a full and final settlement of all claims "arising out of this matter or facts related to this matter that the Grievor has or may have against the Employer". The matter of the settlement is the applicant's grievance in which he alleged that his dismissal was unjust. Among other things, the grievance relies upon the collective agreement's non-discrimination clause and seeks human rights damages. In my view, it is clear from this that the settlement was intended to be a full and final settlement of any claims relating to the termination of the applicant's employment and related matters, including the allegations related to the personal respondent. This is also stated in one of the recitals at the outset of the settlement which states that the parties were agreeing to the full and final settlement of the grievance and all matters with respect to the applicant's employment.

15Accordingly, it is clear that the settlement and release apply to the allegations contained in the Applications which relate to the termination of the applicant's employment and alleged over-monitoring and harassment that preceded, and led up to, the termination.

Duress

16The applicant claimed, both in his written materials and at the hearing, that he was "forced" to sign the Memorandum of Settlement. When I asked him what he meant by this, he stated that his union was working against him and that the union's counsel told him that the Ministry would prosecute him if he did not sign the settlement. The applicant said he was very scared and felt he had no choice but to sign the settlement. He said he did not have time to review the settlement or consult anyone in relation to it.

17Not all pressure experienced by an applicant amounts to duress. The case law sets a high threshold for establishing duress. In order to amount to duress, pressure must be of the kind that the law regards as illegitimate, and it must be applied to such a degree as to amount to "a coercion of the will". See Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 at paras. 8-9.

18In Dai v. Zuo, 2015 ONSC 3008, the Ontario Superior Court held that the following considerations apply in determining whether pressure amounts to a "coercion of the will": (1) whether the party relying on this defence protested; (2) whether there was an alternative course open to him or her; (3) whether he or she were independently advised; (4) whether he or she took steps to avoid the agreement after entering into it.

19In the circumstances of this case, I do not find that the pressure described by the applicant amounted to duress, as that term is interpreted under the law. The applicant is a very well educated person. He did not claim that he did not understand the settlement agreement. He was represented by the union's counsel. There is no evidence that he protested the settlement or sought to nullify it after he entered into it. It was only once the Ministry raised the settlement and release in its Response to the Tribunal that the applicant sought to set aside the settlement.

20I understand that the applicant felt pressured during the settlement discussions as he had to weigh the pros and cons of settling versus proceeding with his grievance. In my view, the statement by the union's counsel about the risks he would face if he did not settle does not amount to duress. Instead, the union's counsel was advising the applicant about the risks of not settling his case. Even if I were to accept that the applicant felt pressured by the union's lawyer to enter into the settlement, the pressure he described does not rise to the level of duress.

Lack of Consideration/Unconscionability

21The applicant also argued that he should not be bound by the settlement because he received little or nothing from it. Although he did not specifically frame his argument in this way, in legal terms, his argument is that he received little or no consideration for the settlement. "Consideration" is the legal term for something of value that a person receives from a contract. In essence, the applicant argued that he should not be bound by the settlement because he received little or no consideration under it. In particular, the applicant noted that he did not receive any money under the settlement. With respect to the Ministry's agreement to forgive any amounts owed to it, the applicant stated that he owed very little to the Ministry and had agreed to repay any amounts he did owe in any event.

22I do agree that the consideration provided to the applicant in this case was on the lower end of the types of consideration provided in other release cases that have come before this Tribunal. Usually, an applicant has been provided some amount of money in a previous settlement. However, this Tribunal has frequently held that, unless a settlement is unconscionable, it is not the Tribunal's role engage in an assessment of whether a particular settlement represents a good deal for the applicant. A settlement is binding on parties who agree to it, because they agree to it (unless there are factors that render their consent invalid). Thus, the Tribunal has dismissed applications based on arguably modest settlements, which have nonetheless been found to be voluntary, just as it has refused to dismiss Applications, based on what might be regarded as generous settlements, where the applicant has not agreed to the settlement. Therefore, settlements which provide little consideration for an applicant will only be set aside if they are unconscionable.

23The applicant must meet a high threshold to establish that a settlement is unconscionable. In Titus v. William F. Cooke Enterprises Inc., 2007 ONCA 573 at para. 38, the Ontario Court of Appeal set out the following four elements for proving unconscionability:

1. A grossly unfair and improvident transaction;
2. A victim's lack of independent legal advice or other suitable advice;
3. Overwhelming imbalance in bargaining power caused by the victim's ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability;
4. Other party knowingly taking advantage of this vulnerability.

24I do not find that the settlement in this case was grossly unfair or improvident. Every case turns on its particular facts. The applicant in this case faced allegations of wrong doing by the Ministry. The Ministry's agreement to convert his termination to a release without cause would make it easier for the applicant to move forward and find other work. This was something of value to the applicant. I am not persuaded that the settlement was grossly unfair or improvident just because the applicant did not also receive a monetary benefit.

25The applicant had the benefit of independent legal advice from counsel for his union. While the applicant was not satisfied with the advice he received, it appeared that the counsel was in fact stressing to him the potential risks of not agreeing to the settlement. I am not persuaded that the settlement is unconscionable due to this legal advice provided to the applicant. Finally, there is no evidence in this case of an overwhelming imbalance in bargaining power of the kind referred to by the Court of Appeal.

26For all these reasons, the settlement and release cannot be set aside due to the amount of consideration provided to the applicant or for unconscionability.

Other Reasons for Setting Aside Release

27The applicant provided a number of other reasons why he believed the settlement should be set aside.

28At the preliminary hearing, he argued that he did not realize that the release would preclude him from proceeding with his Applications before the Tribunal. I cannot accept this argument since the settlement is clear that it is intended to be a full and final settlement of all matters with respect to the applicant's employment with the Ministry.

29The applicant argued that not proceeding in this case would violate his right to a hearing. Applicants who file applications under the Code do have the right to a hearing, but not in all circumstances. That right is subject to the exceptions set out in the Code as well as legal doctrines such as the doctrine of abuse of process. It is well established in the Tribunal's case law that, in cases where an applicant has entered into a settlement, the Tribunal will only permit him or her to proceed with an application if there are legally valid reasons to disregard a previously signed settlement and release.

30The applicant also argued that the language of the settlement demonstrates bias and prejudice against him and that it was drafted with the sole intention of precluding him from moving forward to a hearing. The very nature of a settlement is that parties agree to resolve a matter in order to put an end to it and to prevent future litigation. There is nothing in the language of the settlement or release in this case that is at all unique or unusual. The settlement and release use the kind of language that is common in settlements signed in the arbitration context, or even in the context of Tribunal proceedings.

31The applicant also argued that he should not be bound by the release because the Ministry did not provide him with a letter of employment until October 2015. He claimed that the Ministry did not provide him with the letter until the Tribunal delivered his Applications to the respondents. It may well be that the Ministry delayed in providing the applicant with a letter of employment. However, this is not a breach of the settlement as there is no date specified in the settlement for the provision of that letter. In any event, the parties agreed in the settlement that the Vice-chair of the Grievance Settlement Board ("GSB") remained seized with respect to any issues relating to the implementation of the settlement. If the applicant believes that the respondents breached the settlement by not providing him with his termination letter sooner, he and his union would be entitled to raise the matter with the GSB Vice-chair.

32The applicant also argued that he should not be bound by the release because the Ministry added a handwritten sentence to the letter of employment included at Schedule A to the settlement. The sentence states that the applicant resigned in March 2015. The applicant argued that this sentence was inaccurate, that he did not resign but was terminated, and that the settlement should be disregarded for this reason. It is not unusual for parties to agree to put such a sentence in a letter of employment with the purpose of assisting an applicant to find replacement work. The sentence could only have been to the applicant's benefit, not to the Ministry's benefit. In my view, the inclusion of such a sentence is not a reason to set aside the settlement. This is particularly the case because the applicant himself initialled the added sentence. By doing so, he must be taken to have consented to the addition of the sentence.

33The applicant also argued that the settlement represented a violation of his freedom of speech. When I asked him, in the preliminary hearing, whether he was referring to the confidentiality clause in the settlement, he confirmed that he was. It is common for settlements to contain confidentiality clauses such as the one included in the settlement in this case. Parties insert such clauses in settlements to ensure that the matters dealt with in the settlement are put to rest and that information about the settlement is not disseminated by either party. The Tribunal itself includes such clauses in settlements arrived at in its mediations. I see nothing unusual or inappropriate about the confidentiality clause in this case and the inclusion of such a clause is not a valid reason to set aside the settlement.

Order

34As stated above, I have considerable sympathy for the challenges faced by the applicant in this case. However, for the reasons set out above, the Applications are dismissed. I find that it would be an abuse of process to proceed with these Applications due to the settlement and release signed by the applicant.