HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rodney Whitlow
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Environment and Climate Change
Respondent
-and-
The Association of Management, Administrative and Professional Crown Employees of Ontario
Intervenor
DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Whitlow v. Ontario (Environment and Climate Change)
APPEARANCES
Rodney Whitlow, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of the Environment and Climate Change, Respondent
Jennifer Richards, Counsel
The Association of Management, Administrative and Professional Crown Employees, Intervenor
Marisa Pollock, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of race, ancestry, place of origin, citizenship and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2At all material times the applicant was employed by the respondent. The applicant claims that the respondent’s failure to interview him for two newly posted positions was for discriminatory reasons. The applicant’s then current position with the respondent and the two positions for which he was applying are positions within the respondent organization and with the Intervenor acting as bargaining agent.
3By letter dated August 17, 2015, the Tribunal directed that a preliminary hearing be held to determine whether the Application should be dismissed in whole or in part, on the basis that the applicant has signed a full and final release and that to proceed would amount to an abuse of the Tribunal’s process.
4The Tribunal scheduled a teleconference preliminary hearing on February 2, 2016 at which time the parties made oral submissions. The Intervenor took no position with respect to the release.
5For 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
6In May 2013, the applicant filed a grievance under the Collective Agreement in which he alleged, among other things, that the respondent allowed the continuation of workplace discrimination and harassment and discriminated against him.
7In September, 2013, the applicant filed an Application with the Tribunal alleging that he was discriminated against with respect to the Employer’s posting for the position of Senior Advisor.
8In February, 2014, the Applicant filed another Application with the Tribunal alleging he was discriminated against with respect to a job competition for the position of Manager.
9In April/May 2014, the applicant submitted applications for two job competitions, Great Lakes Advisor and Senior Policy advisor. Both jobs were with the respondent. He was not granted interviews for either position.
10The above two job competitions were restricted. As restricted competitions, the applicant was only eligible to submit applications by virtue of his status at the time as an employee of the respondent.
11On July 14, 2014, the respondent, the Intervenor and the applicant entered into a Memorandum of Settlement (the “Memorandum”) to resolve the outstanding grievance and the two above-noted Human Rights Tribunal of Ontario (“HRTO”) applications. In the settlement the applicant was provided, among other things a paid leave for eight months and an amount of money for general damages. The settlement provided that upon expiry of the applicant’s eight-month paid leave, he would resign from his employment effective March 14, 2015. The Memorandum contained a release in favour of the Respondent.
12On April 14, 2015, the applicant filed the current Application with the HRTO claiming that the respondent’s decision to not interview the applicant for either of the positions posted in April/May 2014 was based on discriminatory factors.
Abuse of Process
13The Memorandum of Settlement includes the following language:
In consideration of this settlement, the Complainant [the Applicant] and the Association [the Intervenor] hereby release and forever discharge the Crown in Right of Ontario and the Employer, its servants, agents and directors of and from any and all actions, causes of action, grievances, claims and demands of every nature and kind arising out of, as a result of, or in any way related to the dispute, the human rights applications and the Complainant’s employment as of the date of the settlement and/or the cessation of his employment with the Ministry of the Environment and Climate Change, including but not limited to any and all civil claims, claims under the Occupational Health and Safety Act, the Ontario Human Rights Code, the Public Service of Ontario Act, 2006 and its regulations and/or directives, and the Employment Standards Act. The Complainant will not make any application, complaint or claim or bring any action and this settlement may be raised as a complete bar to any such application, claim, complaint or action.
14Section 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.
15This 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. Global Egg Corporation, 2011 HRTO 1121 (“Perricone”).
16In 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.
17It is not this Tribunal’s role to assess the appropriateness of the settlement between the parties or 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.
18While a settlement may be set aside if an applicant was under duress at the time he signed it, the test for whether a person has signed a settlement under duress is high and requires an element of threat or coercion. While economic duress is a factor that may be considered, financial difficulties alone are not sufficient to establish economic duress. An applicant must establish that their need was so serious that they had no other option but to sign the settlement: Kailani v. Securitas Canada, 2009 HRTO 1183.
19The applicant argues that the release in Memorandum of Settlement, while it captures specifically the two human rights applications outstanding at the time he signed the Memorandum, it does not impact his right to pursue a human rights claim arising out of his failure to be interviewed for the two positions posted in April/May 2014.
20I disagree. In my view, the Memorandum of Settlement contains an explicit and fulsome release clause. The clause captured more than just the claims set out in the Applicant’s prior grievance and two human rights applications. It barred the applicant from filing any future application regarding his employment with the respondent:
“the Complainant…hereby release(s) …the Employer…from any and all actions, causes of action, grievances, claims and demands of every nature and kind arising out of, or in any way related to…the Complainant’s employment as of the date of the settlement and/or the cessation of his employment with the Ministry of the Environment and Climate Change, including the Ontario Human Rights Code.....
21As the Memorandum provided for the cessation of the applicant’s employment effective March 14, 2015, the final release clause barred any claims in any way related to the applicant’s employment up to that date. In my view, the allegations raised in the Application amount to an outstanding issue related to the applicant’s employment with the respondent. The applicant submitted his job applications in April/May 2014 while he was still employed with the respondent. The applicant was only eligible to apply for these restricted job competitions by virtue of his ongoing employment relationship with the respondent.
22The applicant’s job applications were submitted in April/May 2014, two months prior to the parties entering into the Memorandum dated July 14, 2014. In my view, his job applications were clearly outstanding employment issues at the time the Memorandum was signed and certainly they were outstanding issues as of March 14, 2015 which was the date the Applicant’s employment with the respondent ceased.
23In this case I am satisfied that the terms of the Memorandum support a conclusion that there would not be future litigation regarding the applicant’s employment with the respondent.
24The applicant did not argue economic duress, however, he claimed that his mental and emotional state was “utterly and absolutely compromised” when he signed the Memorandum. While I do accept that the applicant was stressed by the whole situation, I cannot conclude that the applicant has met the standard of duress which would justify overturning the Memorandum. In order to establish duress, as indicated earlier, there has to be an element of threat or coercion. The applicant has not complained that he was either coerced into signing the Memorandum or threatened into doing so.
25The applicant claimed that he has no legal background and no resources or time to access legal counsel on the day the Memorandum was signed and that he did not understand the legal ramifications of the release clause in the Memorandum.
26The applicant is a very articulate and very bright. I cannot accept that he did not understand what he was signing. Throughout he was counselled by the Intervenor representative who was a party to the Memorandum. Immediately above the applicant’s signature on the Memorandum is clause 16:
The Complainant agrees that he has voluntarily entered into this settlement and is fully informed of and understands the consequences of the Memorandum of Settlement and has been fully and fairly represented by AMAPCEO [the Intervenor].
There is no reason to doubt the veracity of this clause.
27Accordingly the Application is dismissed as an abuse of process on the basis of the terms of the Memorandum dated July 14, 2014.
order
28The Application is dismissed.
Dated at Toronto, this 9th day of February, 2016.
“Signed by”
Keith Brennenstuhl
Vice-chair```