Mosbeck v. Community Living Atikokan, 2016 HRTO 1497

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gwenda Mosbeck

Applicant

-and-

Community Living Atikokan and Ontario Public Services Employees Union

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: November 24, 2016

Citation: 2016 HRTO 1497

Indexed as: Mosbeck v. Community Living Atikokan

APPEARANCES

Gwenda Mosbeck, Applicant

Self-represented

Community Living Atikokan, Respondent

Garth O’Neil, Counsel

Ontario Public Service Employees Union, Respondent

Hillary Cook, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment and goods, services and facilities because of because of disability, sex and reprisal.

Background

2The applicant alleged that the Executive Director of Community Living Atikokan (“CLA”) treated her in an aggressive manner when she was trying to carry out her duties as a union steward. Both respondents filed Responses in which they requested dismissal of the Application because this issue was dealt with in grievances filed by the respondent union (“OPSEU”) on the applicant’s behalf. The grievances were settled and the applicant executed a release in favour of the CLA.

3There is no dispute that, subsequent to the incident at issue in this Application, the applicant was assaulted by one of CLA’s clients. The applicant stated that at first she felt she could continue working, but soon felt the effects of the trauma she experienced and began a leave of absence. She received benefits from the Workplace Safety and Insurance Board as a result of her injuries. There is no dispute that OPSEU filed grievances on the applicant’s behalf regarding the treatment she allegedly experienced as a union steward. There is no dispute that these grievances were settled and the applicant signed Minutes of Settlement that included a release in favour of CLA. Pursuant to the Minutes of Settlement, the applicant resigned her employment in exchange for financial compensation.

4In a Case Assessment Direction dated July 4, 2016, the Tribunal ordered a preliminary hearing in this matter to determine if the Application should be dismissed because another proceeding has dealt with the substance of the Application. The Tribunal held the preliminary hearing by teleconference on November 17, 2016.

5At the commencement of the hearing, I advised the applicant that the hearing was an opportunity to explain why the Applicant should proceed despite the settlement of the grievances dealing with the same issues and the release in favour of CLA.

Submissions

6The applicant submitted that she was not in a proper frame of mind at the time she executed the grievance settlement. She submitted that she was not aware of the full extent of her condition until she began seeing a psychologist. The applicant submitted that CLA was aware of odd behaviour on her part, including that she lived in her car for a period of time. The applicant stated that she believed that if she left her job, which was a term of the settlement, things would improve for her, but they did not. I asked her if she was asserting that she lacked the capacity to enter into the settlement and she confirmed that this was her position.

7CLA submitted that the applicant was represented by OPSEU throughout the negotiation of the settlement, which was a month long process. Several union representatives assisted her and CLA did not have direct contact with the applicant during negotiations. The respondent noted that the settlement was in full and final settlement of any claim arising out of her employment with CLA and contained a release in favour of CLA. CLA noted that the release did not specifically refer to the Code, but was drafted in broad language that would include the Code. CLA referred me to several cases in which the Tribunal dismissed applications under section 45.1 or as an abuse of process where the issue before the Tribunal had been addressed in a settlement of a grievance.

8The CLA noted that the applicant filed submissions in reply to the respondents’ Response addressing the issue of the settlement and release. CLA submitted that the applicant’s position was that she agreed to the settlement “on the understanding that all parties involved did their due diligence” following the assault she suffered in the workplace. According to the applicant this understanding was incorrect; therefore, she filed this Application. CLA submitted that the applicant gave no indication that she lacked the capacity to enter into the settlement. CLA submitted that the medical evidence the applicant provided was in any event insufficient to establish incapacity. CLA submitted that there was no dispute that the applicant has struggled with mental health. In that regard, CLA noted that the medical documentation the applicant submitted confirms that the applicant has been diagnosed with certain conditions. CLA submitted, however, that this medical information does not comment on the applicant’s capacity and provides no basis for finding that she could not understand the terms of the settlement or that he mental health caused her to execute the agreement.

9OPSEU submitted that the applicant signed valid Minutes of Settlement containing a full release. OPSEU submitted that it supported the applicant throughout the grievance/arbitration process and the applicant was afforded the opportunity to review the terms of the agreement with experienced union representatives. OPSEU stated that the applicant’s submissions during the hearing were the first suggestion the applicant made of a lack of capacity. OPSEU submitted that the applicant did not provide sufficient evidence to establish incapacity and there was no indication of incapacity at the time the settlement was executed.

Analysis and Decision

10Section 45.1 of the Code states:

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

11In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that a settlement of a proceeding dealing with the same facts and issues as an application was a proceeding that appropriately dealt with the substance of the application. In Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448 and Vere v. Canadian Auto Workers, 2011 HRTO 748, the Tribunal found that a settlement of a union grievance based on the same facts and issues arising in an application is a proceeding that has appropriately dealt the substance of the application. On several occasions the Tribunal has also dismissed applications as abuses of process where the applicant has agreed to release respondents from claims under the Code. See, for example, Gallina v. Ontario (Child and Youth Services), 2014 HRTO 390.

12In this case, the applicant does not take the position that the grievances in question and the settlement of the grievances were not proceedings that addressed the same facts and issues as this Application. Rather, the applicant’s position is that she should not be bound by the settlement and the release contained in it because of her mental health conditions.

13The law presumes that adults have capacity. See, for example, s. 2 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 and Perino v. Perino, 2008 CanLII 11048 (2008), 52 R.F.L. (6th) 341, at paragraph 46 (Ont. S.C.J.). The Tribunal requires parties relying on a medical condition to provide evidence establishing that condition. See, Taranco v. Michedes (a.k.a. Michaelides), 2011 HRTO 1188, Karamesinis v. National Steel Cars, 2009 HRTO 1812, Rivard v. George Brown College, 2009 HRTO 2212, Pelletier v. Nortrax Canada, 2011 HRTO 1968, and Boodhoo v. McMaster University, 2010 HRTO 1757. The applicant’s submissions and the medical information the applicant provided indicates that she has at times experienced significant symptoms as a result of her mental health conditions. As CLA noted, however, the applicant’s medical information does not indicate that she was unable to understand the settlement reached with CLA and does not comment on her capacity. The applicant’s submission was that, at the time, she believed leaving her employment with CLA would benefit her, but was mistaken. Accordingly, it appears that the applicant understood the terms of the settlement, but later realized that it was not advantageous to her. In my view, the applicant has not established that she was unable to understand the settlement.

14In these circumstances, I find that the settlement of the grievances was a proceeding that appropriately dealt with the substance of the Application.

15The Application is dismissed.