Whitlow v. Ontario (Environment and Climate Change), 2016 HRTO 203

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 Minister of Environment and Climate Change Respondent

DECISION

Adjudicator: Laurie Letheren Date: February 12, 2016 Citation: 2016 HRTO 203 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 Environment and Climate Change, Respondent Jennifer Richards, Counsel

Introduction

1This is an Application for Contravention of Settlement filed on February 26, 2015, pursuant to section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application relates to Minutes of Settlement which the applicant, the respondent, and the applicant's union, AMAPCEO entered into on July 14, 2014 (the "MOS").

2In the Application, the applicant claimed that the respondent has breached the following terms of the MOS:

• Term 4 (certain documents from the applicant's employment file were to be removed from his personnel file and sealed),
• Term 5 (respondent to provide applicant with paperwork necessary for him to claim a tax rebate),
• Term 7 (respondent to provide applicant with certain documents from a hard drive), and
• Term 13 (parties agree that nothing in the MOS constitutes and admission of liability or wrongdoing by either party).

3On September 3, 2015, the applicant filed documents in support of the Application in which he expanded his claim to include breaches of the following terms:

• Term 6 (agreement with respect to job competitions),
• Term 8 (employer to provide a specific letter of reference and to provide reference checks in an agreed upon manner),
• Term 9 (restrictions on applications for future employment), and
• Term 14 (contents of MOS to be kept confidential).

4A Response was filed on March 9, 2015. The respondent asked that the Application be dismissed on the basis that it is without merit.

5By Case Assessment Direction dated March 25, 2015, the Tribunal ordered a full-day in-person Contravention of Settlement hearing of the Application. This hearing was held in Toronto on December 4, 2015.

6At the beginning of the hearing, the applicant stated that in addition to the allegations set out in the Application and those made in the documents filed on September 3, 2015, he now wishes to assert that term 16 of the MOS was also breached.

7Term 16 of the MOS states that the applicant:

agrees that he has voluntarily entered into this settlement and is fully informed of and understands the consequences of the Memorandum of Settlement and had been fully and fairly represented by AMAPCEO.

8The applicant submits that he was not fully informed when he signed the MOS and that on July 14, 2014, he lacked the capacity to sign the MOS.

9When the applicant raised this new allegation, I advised the parties that this potentially changed the nature of the hearing completely. I could not assess a breach of the MOS and potentially make an order to remedy that breach when the applicant was now alleging that he lacked capacity to sign the MOS. If he could prove his incapacity at the time of signing, this could make the MOS void and unenforceable.

10I highlighted for the applicant the fact that almost 17 months had passed since the signing of the MOS. Also, it was agreed by all parties that a number of the terms had been fulfilled.

11I indicated that I would have to hear submissions on the issue of whether I should allow the applicant to amend his Application at this point in order to add this new allegation. I also indicated that the applicant would need to file evidence to support this allegation that he lacked capacity to sign the MOS on July 14, 2014.

12After some discussion with the parties and in consideration of the best use of the parties' time and the Tribunal's resources, I determined that the hearing on the allegations set out in the Application and the September 3, 2015 submissions would proceed on December 4, 2015. I indicated that I would issue a Case Assessment Direction directing the parties to make submissions on the issue of whether the Tribunal should allow the Application to be amended.

13On December 7, 2015, the applicant filed a Request for Order During Proceedings (Request) for disclosure of documents.

14In a Case Assessment Direction dated December 8, 2015, the Tribunal directed the parties to file their submissions and supporting documents in response to the applicant's request to amend the Application.

15The applicant provided his submissions and supporting documents on December 28, 2015, as directed. The respondent filed its submissions on January 11, 2016.

16The applicant requested that the Tribunal reject the respondent's submissions. He took the position that they were filed beyond the 14 days from the date it had received the applicant's submissions. According to my calculation and in applying Rule 1.9 which states "Where an action is to be done within a specified number of days, the days are counted by excluding the first day and including the last day", the 14th day after December 28, 2015 is January 11, 2016. The respondent's submissions were received in accordance with the directions in the December 8, 2015 CAD.

Request for Disclosure

17The applicant made two Requests for production of documents from the respondent. The first Request was for an email exchange that relates to a list of files created as part of the fulfillment of term 7 of the MOS. The second Request is for past correspondence and documentation that would have been prepared for the applicant to complete his income tax claim and to claim the tax rebate referenced in term 5 of the MOS.

18The documents requested may have potentially been relevant to the issues that were to be determined at the Contravention of Settlement hearing. As the presentation of the evidence by the parties was completed on December 4, 2015, and that part of the hearing is completed, the applicant is out of time for making these Requests.

Request to Amend the Application

19In considering requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent in allowing the amendments at this point.

20The applicant's submissions contained a "victim impact statement". He did not address the factors that the Tribunal is to consider in determining a request to amend an application as he had been directed to do in the December 8, 2015 CAD. Much of the "victim impact statement" addresses his health during the spring and summer of 2014. He attached two letters from his physician and letters from two of his sisters which also discuss his health in the spring and summer of 2014.

21The respondent submits that the applicant should not be allowed to amend his Application. He never raised his capacity in the Application or in other documents that were filed leading up to the hearing. It was not until the hearing, 17 months after he signed the MOS, that the issue of his incapacity to sign was raised. The respondent submits that he is out of time for making this allegation and he has not provided any good faith reason for the delay.

22The respondent also submits that the applicant has not established that the situation around the signing of the MOS is one of the exceptional circumstances in which the parties would not be bound by the agreement. The respondent submits that the applicant has not demonstrated that at the time of signing the MOS on July 14, 2014 he was unable to understand what was being done and has not demonstrated that the respondent was aware of his incapacity at the time.

Nature, Timing and Prejudice

23As I indicated to the parties at the December 4, 2015 hearing, this proposed amendment completely changes the nature of the Application as the Tribunal could not find that there was a breach of the MOS if the MOS are not binding.

24The MOS contained a number of terms that have been fulfilled, including payments of money, remittance of statutory deductions and issuing letters of reference. Declaring the MOS unenforceable would require the parties to reverse the steps taken in fulfilling these terms and I find that would cause serious prejudice to the respondent.

25I also find that the applicant is out of time for making this request to amend. Section 45.9 of the Code states that Contravention of Settlement Applications must be brought within six months of the contravention. While s. 45.9 applies to when a person may file a Contravention of Settlement Application, and not to when an applicant can seek an amendment, s. 45.9 does set out the expectation that an applicant will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them. The wording of s. 45.9 essentially mirrors the language concerning the timeliness of filing applications pursuant to s. 34 of the Code. I find that the same reason for having these limitation periods that has been consistently applied in s. 34 delay decisions; i.e. that a "limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously", applies here. See Freitag v. Penetanguishene (Town), 2012 HRTO 1644. To allow the applicant to include out of time allegations through this Request would circumvent and defeat the purpose of s. 45.9 of the Code. The applicant has provided no good faith reasons for the delay in making the Request to amend.

Capacity to Sign Memorandum

26In addition, I find that the applicant has not provided evidence to support a finding that he has met the test for finding signed MOS as unenforceable.

27In order to determine whether the applicant lacked the capacity to sign the MOS, I must consider whether the evidence provided in support of this claim demonstrates that, on July 14, 2014, the applicant was not able to understand the information that was relevant to making the decision on whether or not to sign the MOS or that the applicant was not able to appreciate the foreseeable consequences of making the decision to sign the MOS or failing to make that decision.

28I find the documents submitted by the applicant do not support a finding that he lacked the capacity to sign the MOS on July 14, 2014. One of the physician's letters is dated March 25, 2014. The other letter dated, December 10, 2015, states, "any decisions he made at this time may have not reflected how he would have reacted under normal circumstances". Stating that he may not have reacted as he might have normally is not a claim that the applicant did not have the capacity to sign the MOS.

29For these reasons, I am not granting the applicant's request to amend his Application.

BREACH OF SETTLEMENT

30Having found that the applicant cannot amend the Application to allege that the MOS is unenforceable, I will now address the allegations made in the Application and in the documents filed on September 3, 2015 regarding the terms of the MOS that the respondent has allegedly breached.

Term 4

31The term states that the parties agree that the letter written regarding the status of his employment and all documentation associated with this letter and the investigation leading to this decision was to be removed from the applicant's files and sealed and not relied on or referred to for any purpose.

32The applicant claims that an email written to Kathleen Wynne and others on January 27, 2015, and the fact that his name was removed from the government's INFOGO website, are indications that the respondent breached term 4.

33The email to Kathleen Wynne and others does not mention the applicant's name. It speaks generally about the environment of the respondent as a workplace. It states that of five people hired at a small branch of the respondent, "two were released and one other is currently on leave..." The author of the email was not present to give evidence at the hearing. As a result, we have no way of knowing how he had access to information about those who were released and on leave. He does identify himself as a person who works in this branch. The applicant did admit that at the time this letter was written he was on leave from the respondent.

34It cannot be confirmed that the applicant is one of the employees whose employment status is discussed in this email and I cannot conclude that the email's author gained this information through the respondent breaching term 4 of the MOS.

35The applicant states that his name was in INFO-GO, the Ontario government's telephone directory, prior to the signing of the MOS but when he checked after signing, his name had been removed. He submits that this is a breach of term 4 because anyone looking for his name would know he was no longer working for the respondent and they would assume there was wrongdoing on his part.

36The respondent's witness stated that his understanding is that when people go on leave, their names are removed from the directory as part of an administrative process so that the directory has up-to-date and accurate information in order to avoid confusion.

37I do not find that removing the applicant's name from INFO-GO is a breach of term 4 of the MOS. Term 4 makes no mention of INFO-GO or any other directory and I do not see anything in the language of that provision that would encompass a restriction on removing the applicant's name from a government directory.

Term 5

38Term 5 states that the respondent was to provide the applicant with paperwork necessary for him to claim a tax rebate. The applicant claims that this paperwork was never provided to him. The respondent's witness states that the applicant was asking the respondent to attest to the location of where he was providing services to the respondent. The witness states that the respondent could not attest to this as to do so would not be truthful.

39I find that the respondent has not breached term 5. The respondent has provided "any paperwork it needs to complete" as it agreed to do in term 5 of the MOS.

Term 6

40Term 6 addresses the conditions surrounding the applicant's right to apply for restricted jobs and that the respondent was to provide the applicant with the information he needed to facilitate access to the competitions. The applicant agrees that he did get the necessary documentation to apply for a number of restricted jobs and he did apply. What the applicant is actually raising in this allegation is that the respondent advised those involved in recruitment for these jobs about the circumstances of his employment status at the time. The applicant did not have any evidence to support this allegation and admitted that it was pure speculation on his part based on his belief that someone with as much professional experience as he has should have been offered these jobs.

41The applicant has not proven that the respondent breached term 6 of the MOS.

Term 7

42According to this term, the respondent was to provide the applicant with a list of documents that were in a file on a specific hard drive of the respondent. After reviewing this list, the applicant was to provide the respondent with a list of the documents that he considered his own work. Once the respondent reviewed the list and determined whether the documents on the list were the applicant's own work, this work would be returned to the applicant.

43The parties agreed that there were a few emails exchanged between the respondent and the AMAPCEO about these documents. It appears from the emails that the applicant received a list but indicated that the list was not a list of his documents and ask that he be provided with a list of documents that were contained in the "My Documents" file. It appears that this request may have been made to the respondent through AMAPCEO but it is not clear whether the respondent received the email from AMAPCEO or responded to it. However, there was no follow-up done by the applicant.

44Since term 7 states that the applicant was to compile a list of documents, and the applicant did not follow up after receiving what he assessed to be the incorrect or incomplete list and ask for a different list, I cannot find that the respondent is in breach of term 7.

Term 8

45Term 8 states that the respondent was to provide a reference letter for the applicant. When the MOS was signed there was a draft letter attached but a certain section needed to be verified.

46The applicant agreed that he did receive the letter of reference but that it was not what he had anticipated it would say after the respondent verified the contents. Although the applicant may have been disappointed with the contents of the letter, I do not find that the respondent breached this term.

Term 9

47The applicant stated that he is pursuing this breach through another Application at the Tribunal.

Terms 13 and 14

48The applicant submits that his name was on the Ontario "Sunshine List" which indicates that his salary for 2014 was more than $100,000 and that then his name was removed from INFO-GO. He claims this is a breach of the term which states that the MOS do not constitute an admission of liability or wrongdoing by either party, and the term that the MOS were to be kept strictly confidential.

49The applicant submits that when his name was removed from INFO-GO, people could assume that his employment ended because of his wrongdoing. Again, I find that the applicant has provided no evidence of such a breach and that his allegations are based on pure speculation and assumptions.

50For all of the reasons stated above, I find that the respondent did not breach any of the terms of the MOS.

ORDER

51The Application is dismissed.