Felix v. CapReit, 2016 HRTO 1238

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Felix

Applicant

-and-

CapReit, David Cohen and Dan Ursulescu

Respondents

DECISION

Adjudicator: Jennifer Khurana Date: September 21, 2016 Citation: 2016 HRTO 1238 Indexed as: Felix v. CapReit

APPEARANCES

Hans Felix, Applicant Self-represented

CapReit Apartments, David Cohen and Dan Ursulescu, Respondents Sasha Segal, Counsel

Introduction

1The applicant filed an Application alleging that the respondents discriminated against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) with respect to employment because of colour, ancestry, place of origin, citizenship, ethnic origin, association with a person identified by a prohibited ground of discrimination and reprisal.

2By Case Assessment Direction (“CAD”), the Tribunal directed that a preliminary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. the applicant has signed a full and final release with respect to the same subject matter of the Application, and that to proceed with hearing the Application would amount to an abuse of the Tribunal’s process; and/or

b. there is no reasonable prospect that the Application or part of the Application will succeed.

3The Tribunal scheduled a teleconference preliminary hearing and the parties made oral submissions.

4For the reasons that follow, the Application is dismissed. I find that it would be an abuse of process for the applicant to proceed with his Application.

BACKGROUND

5The applicant was employed by CapReit as a Bilingual IT Support Specialist from October 6, 2014, until November 13, 2014, when he was terminated. The letter of termination dated November 13, 2014 included the following:

As a gesture of good will, conditional upon you returning to the Company a signed copy of this letter and attached Release acknowledging acceptance of the terms of this letter and releasing the Company from all other claims, you shall be provided with two (2) weeks pay representing $1,923.07. The offer is valid for five (5) business days and the Release must be returned with a signature in order for payment to follow.

6The applicant wanted his employer to conduct an investigation into conflicts and incidents involving some of his former colleagues and the circumstances surrounding his termination.

7After his termination on November 13, 2014, the applicant emailed Jodi Lieberman, a human resources executive with CapReit, requesting an investigation into the incidents and his termination.

8On November 15, 2014, Ms. Lieberman acknowledged receipt and indicated that she was looking into the matter.

9On November 16, 2014,, the applicant wrote back to Ms. Lieberman and advised that he was still awaiting the results of the investigation.

10On November 20, 2014, the applicant returned the signed release and inquired as to why he had gotten the “silent treatment” since November 15, 2014.

11On November 21, 2014, Annemari Fernando, a human resource administrator, acknowledged receipt of the signed release and advised that the payment to the applicant would be direct deposited to his account on November 28, 2014.

12The applicant was paid $1,923.07 and he has not returned the funds.

13On December 12, 2014, the applicant contacted Ms. Lieberman, Ms. Fernando and other representatives of CapReit, inquiring as to the status of the investigation he requested.

14The applicant filed an Application with the Tribunal on July 24, 2015, alleging discrimination arising out of incidents involving some of his former colleagues, and relating to a comment made upon termination that he was not a good “fit” with the company.

ABUSE OF PROCESS

15Paragraph [2] of the Release Agreement reads as follows:

I, Hans Felix, on behalf of myself and my extended family and our respective heirs, executors, successors and assigns, hereby irrevocably release and forever discharge the Employer, and its former, current and future shareholders, partners, affiliates, trustees, directors, officers, representatives, agents, employees, successors and assigns collectively, (the “Releasee(s)”) from any and all actions, causes of action, suits, contracts, covenants, complaints, applications, demands and claims whatsoever, whether arising in common law or equity, by contract (written or otherwise), tort (intentional or unintentional), or under statute or otherwise, whatsoever, known or unknown, which the Releasees have, have had or may ever have in any way relating to or connected with my employment with the Employer, or the termination thereof. Without limiting the generality of the foregoing, I wholly release and forever discharge the Employer from claims including claims with respect to any non-salary benefits including vacation pay and in respect of or relating to termination pay and severance pay. I further acknowledge that the payment contemplated by the letter Agreement satisfies all obligations of the Employer under the Employment Standards Act, 2000, and the Human Rights Code of Ontario.

16Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that this 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.

17This Tribunal has held 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. See for example, Solcan v. Kitchener (City), 2011 HRTO 2205; Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151; Dickson v. General Motors of Canada Limited, 2013 HRTO 1347; Hazel v. Ainsworth Engineered, 2009 HRTO 2180; Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 (“Perricone”); and O’Regan v. Firestone Textiles, 2009 HRTO 2219.

18In 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.

19The applicant acknowledges that he signed the release on November 20, 2014, and that he did not return the funds paid to him by the respondent employer. He is asking the Tribunal to allow his Application to proceed on the basis that that he only agreed to sign the release because he was assured that his former employer would conduct the investigation he requested.

20The applicant submits that a conversation he had with Ms. Lieberman or Ms. Fernando prior to execution of the release is tantamount to a verbal “amendment” to the release agreement he signed. The applicant also relies on email communications with Ms. Lieberman in support of his position that the promise to conduct an investigation into the allegations of employee mistreatment was part and parcel of his agreement to sign the release.

21At the hearing, Ms. Lieberman testified that she could not recall when she spoke with the applicant, but that in any case, she would not have made any verbal assurance to the applicant that was intended to be attached to the terms the release. While much was made at the hearing about the timing of the applicant’s discussion with Ms. Lieberman, namely whether it was before or after he signed the release, this is not determinative. There is clear language in the release that contemplates a broad release of all claims. The release makes no mention of its terms being conditional on an investigation, as acknowledged by the applicant.

22Further, while some of the emails submitted by the applicant refer to the applicant’s concerns about his co-workers and to his request for an investigation, no reference is made to the release being contingent on the investigation. In Ms. Lieberman’s November 15, 2014 email sent in reply to the applicant’s email setting out his concerns, she simply acknowledges receipt of the applicant’s email and indicates that she will respond accordingly.

23Finally there is no evidence that the release was signed under duress or coercion. The applicant also testified that he had the opportunity to consult with legal counsel prior to signing. While the applicant testified that the lawyer assured him that he could sign the release because there was a verbal agreement to conduct the investigation, irrespective of the advice given, the applicant signed the release agreement which is fulsome and unambiguous. The applicant explicitly agreed to release the respondents from all claims relating to his employment and/or his termination. The applicant’s mistaken understanding that any discussions he may have had with the respondents made the release conditional on the respondents conducting an investigation of his allegations are not reasons to set aside a clear and unambiguous release. The applicant cannot impute additional terms or conditions into a written settlement on the basis of his mistaken understanding about an investigation.

24Further, as noted by counsel for the respondents at the preliminary hearing, the applicant is not unfamiliar with the Tribunal or with the terms of releases in settlement agreements. The applicant has filed several Applications with this Tribunal, including one involving a request to set aside a settlement agreement. See Der Von Felix v. Super Telecommunications, 2008 HRTO 400.

25I find that the Release Agreement precludes the applicant from filing his Application and that it would be an abuse of process to permit the Application to proceed.

26The Application is dismissed.

NO REASONABLE PROSPECT OF SUCCESS

27Having found that the Application is dismissed as an abuse of process, I need not deal with the issue of whether the there is no reasonable prospect that the Application or part of the Application will succeed.

Order

28For the above reasons, the Application is dismissed.