Reuben Gooden v. Corporation of the City of Burlington and Canadian Union of Public Employees and its Local 2723, 2016 HRTO 1617

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Reuben Gooden

Applicant

-and-

Corporation of the City of Burlington and

Canadian Union of Public Employees and its Local 2723

Respondents

DECISION

Adjudicator: Jennifer Khurana

Date: December 15, 2016

Citation: 2016 HRTO 1617

Indexed as: Gooden v. Burlington (City)

WRITTEN SUBMISSIONS

Reuben Gooden, Applicant

Self-represented

Corporation of the City of Burlington, Respondent

Jane Gooding, Counsel

Canadian Union of Public Employees and its Local 2723, Respondent

Elizabeth Nurse, Counsel

Introduction

1This is a Contravention of Settlement Application filed by the applicant pursuant to s.45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondent City of Burlington is the applicant’s former employer and the Canadian Union of Public Employees and its Local 2723 (“the Union”) is the applicant’s former bargaining agent.

2The applicant was a transit operator until he was terminated from employment on February 8, 2016. The applicant filed an Application alleging discrimination which was resolved by way of Minutes of Settlement signed by the parties on June 30, 2016.

3On September 9, 2016 the Registrar wrote to the parties and advised that the Contravention of Settlement Application does not appear to allege that the respondent breached the Minutes of Settlement from a previous Application. Rather, the applicant appears to claim that the settlement was signed under duress and that it should be set aside. The Registrar further advised that Contravention of Settlement Applications may only be filed where Minutes of Settlement are alleged to have been breached, and that the applicant may be entitled to bring a new application seeking to set aside the previous settlement and proceed with an application at the Tribunal on the basis of the original allegations. The applicant was directed to clarify whether or not an alleged breach of Minutes of Settlement occurred and to indicate his intentions with respect to proceeding with the Application.

4The applicant responded to the Registrar’s correspondence. He submits that the Tribunal has the discretion to set aside or examine the overall fairness of the settlement. He alleges that the employer coerced him into signing the settlement and negligently or intentionally deceived him during the process.

5The Union filed a Response in which it indicates that it filed a grievance on behalf of the applicant challenging his termination. The grievance was settled by the City of Burlington, the Union and the applicant at mediation on June 30, 2016. As part of the settlement, the applicant also agreed to settle his Application before the Tribunal against the City of Burlington. The Union’s position is that the applicant makes no allegation that there has been any contravention or breach of the June 30, 2016 settlement and that the applicant has failed to complete Question 6 of the Application for Contravention of Settlement as required by Rule 24.2 of the Tribunal’s Rules of Procedure.

DECISION

6The Application must be dismissed. The applicant has failed to identify an alleged breach of the Minutes of Settlement and has not indicated the term of the settlement that he seeks to enforce. In his Contravention of Settlement Application the applicant alleges that the date of the last alleged contravention or breach of the settlement is June 30, 2016. This is the date that the Minutes of Settlement were signed with the respondents. He has not referred to any other date or made any reference to an alleged contravention thereafter. It rather appears that the applicant objects to the settlement itself, alleging that the agreement is unfair, that it was a “fraudulent settlement” and now seeks to have the Minutes of Settlement set aside.

7The Tribunal only has jurisdiction over an Application for Contravention of Settlement where there is an allegation that a term of the settlement has been breached. The Tribunal can only make an order under section 45.9(8) of the Code if the Tribunal determines that a party has contravened the agreement. See Barrer v. Nipissing University, 2011 HRTO 1746 (“Barrer”), O’Connor v. Ontario (Finance), 2012 HRTO 2381, Dopelhamer v. Sobeys Capital Incorporated, 2012 HRTO 1806.

8In Barrer at paragraphs 8 and 9, the Tribunal found:

… the applicant is not arguing that another party, the respondent, has contravened the settlement. She is, in effect, arguing that she signed the settlement under duress, meaning that she entered into a contract against her own free will, that the contract does not represent a voluntary agreement, and as a consequence the Tribunal should set aside or void the settlement.

The Tribunal can only make an order under section 45.9(8) of the Code if it determines that a party has contravened the settlement. The Application in this case does not actually allege a contravention of settlement. As a consequence, the Tribunal does not have jurisdiction under the Code to consider the Application and the Application for a Contravention of a Settlement is dismissed.

9The applicant’s submissions do not provide any particulars as to the nature of the alleged breach. The Tribunal therefore does not have jurisdiction under the Code to consider this Application for a Contravention of Settlement.

ORDER

10The Application is outside the Tribunal’s jurisdiction and is dismissed.