Adesuwa Iyamu v. Brampton Caledon Community Living, 2016 HRTO 1214

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adesuwa Iyamu Applicant

-and-

Brampton Caledon Community Living, Vivienne Senior, Joan McGovern, Michele Lowe-Shaw and Karen Brown Respondents

DECISION

Adjudicator: Mary Truemner Date: September 15, 2016 Citation: 2016 HRTO 1214 Indexed as: Iyamu v. Brampton Caledon Community Living

APPEARANCES

Adesuwa Iyamu, Applicant Cecil Norman, Representative

Brampton Caledon Community Living, Vivienne Senior, Joan McGovern, Michele Lowe-Shaw and Karen Brown, Respondents Andrew Ebejer, Counsel

Canadian Union of Public Employees Local 966, Intervenor Bobby Nand, Representative

Introduction

1This Application was filed on November 19, 2015. It alleges discrimination with respect to employment because of sex and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The individual respondents are management employees of the corporate respondent, the applicant's employer.

background

2The description in the Application of what happened is extremely long. The essential allegation is that the respondents changed the applicant's day shift to an evening shift when she returned from maternity leave in February 2015, and that when she asked to revert to her daytime shift to accommodate the schedule of her baby's daycare, the respondents refused. The Application describes the applicant's attempts, before and after her return to work, to negotiate better hours. The Application describes how the respondents chastised her for choosing to have a baby at the beginning of her career and for not providing information as to the availability of her partner and others to care for the baby outside of daycare hours. The Application also describes how the respondents accused the applicant of lying and fraud, particularly in the context of who she listed as family to qualify for benefits from her plan, as the negotiations for a modified shift continued.

3The last event described as discrimination or harassment occurred on May 7, 2015, but the Application also states that the applicant signed Minutes of Settlement withdrawing a grievance on July 7, 2015. The Application concludes, "As of today, November 17, 2015, [the corporate respondent] has not reinstated me to my pre-maternity leave position. [It] has not provided my child accommodation needs."

4The applicant attached Minutes of Settlement to which the applicant, the respondent and the intervenor ("the union") are parties.

5The respondents filed a Response and attached, amongst other things, the grievance. They requested that the Tribunal to dismiss the Application on the basis that the applicant had signed a full and final release with respect to the same subject matter as contained in the Application, and had provided the applicant with shifts in the day. The respondents alleged that to proceed with the Application would be an abuse of process.

6By letter dated February 18, 2016, the Tribunal directed that a preliminary hearing be held to determine the respondents' request to dismiss the Application, and a teleconference preliminary hearing was held on June 17, 2016.

7For the reasons that follow, the Application is dismissed. I find that it would be an abuse of process for the applicant to proceed with her Application.

The Grievance and the Minutes of Settlement

8The applicant's grievance was signed by the applicant on March 10, 2015. It claimed:

The management violated article '4' in the [Collective Agreement] Management rights, the Employment Standard Act, including Ontario Human Rights Code by not accommodating me to work. Also the employer stated that my partner and children to be removed from my benefit plan because he is no longer co-habiting with me. The employer should not be telling me when I should be planning to have children and how to raise them.

9The applicant requested the following relief in her grievance:

Redress. I be accommodated as per [past] practice, stop the [bullying] and the harassment, cease and desist in the practice, plus make me whole and any other redress made by [an arbitrator].

10The Minutes of Settlement with respect to the grievance were signed by the applicant on July 7, 2015. The Minutes include the following language:

Whereas the Union and the Grievor submitted a Grievance to the Employer, Grievance number 2015-01, dated March 10, 2015 for a violation of Article 4 of the Collective Agreement, Employment Standards Act, and the Ontario Human Rights Code.

And Whereas the parties to these Minutes of Settlement have agreed to resolve the forgoing Grievance and all matters pertaining to the Grievors' employment with the Employer in accordance with the terms contained herein;

Now Witnesseth that in consideration of the terms and conditions of these Minutes of Settlement, the parties hereby agree as follows:

1. The Grievor and the Union do hereby withdraw and abandon the above-noted Grievance

2. The Employer hereby agrees at this time to the agreed present schedule as discussed. Please note that hours, shifts or locations as per the Collective Agreement cannot be guaranteed as support worker hours and locations are in place as required for the needs of BCCL. The Grievor hereby agrees to withdraw any and all claims and grievance rights pursuant to the above Grievance.

3. The parties agree that the terms of these Minutes of Settlement shall remain confidential as amongst the parties and agree not to disclose to any person or entity the terms of these Minutes of Settlement, except as required by law.

4. The parties hereto agree that the foregoing terms are in full and final settlement of the above-noted Grievance and of all matters arising out of or in connection with the grievance. This settlement is made without prejudice and without any admission of liability or violation of the Collective Agreement, Employment Standards Act or the Ontario Human Rights Code or any applicable legislation by the Employer. Further, this settlement shall not constitute a precedent for the Employer and the Union in the same or similar circumstances in the future.

5. The Grievor signed these Minutes of Settlement voluntarily without pressure from any person and has been fairly and fully represented by the Union with respect to this matter and has been given a full opportunity to review and consider these Minutes of Settlement prior to signing.

Abuse of Process

11Section 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 Tribunal's Rules of Procedure.

12This Tribunal has found that it would be an abuse of process to allow an Application to proceed where the applicant has signed a full and final release, in the absence of exceptional circumstances: O'Regan v. Firestone Textiles, 2010 HRTO 502; Parma v. Stoney Creek Lifecare, 2010 HRTO 501; Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655.

13In Perricone, above, this Tribunal recognized that parties to a settlement are prevented from litigating settled matters, stating at para. 39:

When two parties contract to settle matters between them, the principle of finality demands that the contract be given effect and prevents parties from litigating settled matters, unless there are compelling reasons to set the contract aside altogether.

14It is not this Tribunal's role to assess the appropriateness of the settlement between the parties, nor is it the Tribunal's role to consider whether the settlement 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.

submissions of the parties

The Applicant's Submissions

15The applicant filed two different sets of written submissions and made oral submissions at the preliminary hearing.

16The applicant argues that "the union did not incorporate any human rights issues in the grievance" nor any human rights remedies. Yet she also argues that the union representative asked her to sign the Minutes "as a condition for her to return to her pre-maternity shift."

17The applicant argues that when she signed the Minutes, she did not understand that the effect would be to prevent her from pursuing allegations at the Tribunal. She says that no one explained the effect to her, and, being from Benin, her own knowledge of English is basic. While she admits that she drafted and signed the lengthy Application, she claims that she did so with her community helping her to understand it.

18The applicant also argues that she was under extreme pressure, even duress, to sign the Minutes in order to return to her daytime shift. Finding childcare for the evening and night was very difficult, and she had some fear of the involvement of the police and the Children's Aid Society ("CAS") because, on the night of February 24, 2015, she was unable to leave work to relieve her baby's caregiver and the baby was crying so loudly that the police investigated. Apparently, related involvement by the CAS and the police occurred on several dates up to and including April 9, 2015, and she feared even afterwards that her child might scream and yell at night to the point that her child would be removed from her care.

19She also argues that she was under duress given her health at the time she signed the Minutes. She claims that she needed to be off work for one week as late as March 9, 2015 because of illness, presumably related to the anxiety and depression with which she tried to cope in 2015. She claims that at the time she signed the Minutes, she was still seeing a doctor, but her health was not so poor that she was unable to go to work, and she was working the day she signed the Minutes.

20The applicant also argues that even if her execution of the Minutes were to release the corporate respondent, the personal respondents were not parties to the grievance or the settlement of it, and therefore the Application should proceed against the personal respondents.

The Respondents' Submissions

21The respondents provided both written and oral submissions.

22The respondents argue that the subject-matter of the Application mirrors that of the grievance and therefore, given the language in the Minutes, the allegations contained in the Application are subject to a full and final release. In support of this, the respondents point to the language in the grievance, the Minutes and the Application, noting that the events particularly described in the Application all pre-date the execution of the Minutes.

23The respondents argue that there is no basis to void the release on the basis of the applicant's language skills because the applicant admits that she works in English, and the Minutes that she signed are short and in plain English. She was free to take all the time that she required to understand them before signing, and she had the benfit of union representation. The respondents submit that even if the applicant did not understand the Minutes, she had the capacity to understand, which, as stated in Eveleigh v. ArcelorMittal Dofasco Inc., 2016 HRTO 279, is sufficient.

24The respondents take the position that the applicant was not under duress of any kind, noting that one of the terms in the Minutes agreed to by the applicant was that she was "signing voluntarily and without pressure". They agree that the applicant was absent due to illness in March 2015, but argue that there is insufficient proximity between that time and the time she executed the Minutes to conclude that the applicant was incapable or under any kind of duress when she signed.

25With respect to the applicant's argument that the Minutes do not bind the personal respondents, the respondents point to the language in the grievance which makes allegations against "the management" and "the employer" interchangeably as violating the Collective Agreement and the Code.

The Union's Submissions

26The Union takes the position that the grievance did concern the subject-matter of the Application and that the Minutes resolved the issues in the Application. It also claims that it fairly represented the applicant.

analysis

The Subject-Matter of the Application and the Grievance

27The grievance and the Minutes speak for themselves. Both make clear that the allegations are not only under the Collective Agreement but also under the Code, which is specifically referenced in both documents. It is clear that the grievance, although brief, is raising the same issues in the same time period as the Application: the alleged lack of accommodation for her shift hours to meet her childcare needs, and the alleged harassment and bullying related to that accommodation and to the applicant's decision to have a child when she did. The release language in the Minutes therefore applies to the allegations in the Application.

28I also find that the release language in the Minutes applies to the Application both with respect to the employer and with respect to the personal respondents given their roles as managers. I say this because the grievance raises the alleged harassment of the applicant by "management" and the Minutes resolve the grievance. The Minutes "are in full and final settlement of the... Grievance and of all matters arising out of or in connection with the grievance." The Minutes are therefore in full and final settlement of the allegations in the Application.

Duress

29While 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. An applicant must establish that her need was so serious that she had no other option but to sign the settlement: Kailani v. Securitas Canada, 2009 HRTO 1183.

30In my view, even accepting the applicant's state of facing tremendous pressure as a parent coping with health problems, pressure threatening the custody of her child and the need for daytime shifts to accommodate childcare, the circumstances of this case do not qualify as duress. I also note that the applicant signed the Minutes months after the involvement of the CAS and the police, and months after her work absence related to illness. That lack of temporal proximity cannot support a finding of duress. The applicant has not satisfied me that her need was so serious that she had no other option but to sign the documents.

Applicant Not Understanding Minutes

31As for the applicant's assertion that she did not read or understand the Minutes, even if this were true, I agree that the applicant is still bound by them given that she had the capacity to understand them by asking her union representative, or taking them to her community to review them. See, Nolan v. Royal Ottawa Health Care Group, 2014 HRTO 1604; and Eveleigh v. ArcelorMittal Dofasco Inc., 2016 HRTO 279.

order

32In the circumstances, it would be an abuse of the Tribunal process to allow the Application to continue. The Application is dismissed.