Randall Charass v. Centre for Addiction and Mental Health, 2016 HRTO 50

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randall Charass

Applicant

-and-

Centre for Addiction and Mental Health

Respondent

DECISION

Adjudicator: Naomi Overend

Date: January 13, 2016

Citation: 2016 HRTO 50

Indexed As: Charass v. Centre for Addiction and Mental Health

APPEARANCES

Randall Charass, Applicant

Self-represented

Centre for Addiction and Mental Health, Respondent

Daryn Jeffries, Counsel

1The applicant filed this Application on November 12, 2014, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of race, colour, place of origin, ethnic origin, sexual orientation, gender identity, gender expression and marital status. Specifically, the applicant alleges that, contrary to the Code, he had been (1) harassed in his employment in the summer and fall of 2013, (2) suspended with pay on November 12, 2013 and (3) fired from his job on December 18, 2013.

2Prior to filing this Application, the applicant had also filed a grievance concerning the termination of his employment, which was referred to arbitration. The parties to the grievance were the respondent, the applicant and the applicant’s bargaining agent, OPSEU Local 500 (the “union”). On March 6, 2015, the first day of the arbitration, the parties to the grievance signed a Memorandum of Agreement (the “Agreement”) and the applicant signed a Final Release and Acknowledgement (the “Release”).

3The respondent takes the position that it would be an abuse of process for the applicant to proceed with his Application in light of the terms of the Agreement and Release. Parenthetically, at the time that grievance was resolved, the respondent had not been served with the Application.

4The Tribunal scheduled a teleconference preliminary hearing on November 3, 2015, at which time the parties made oral submissions. Prior to that, the applicant had also filed written submissions about whether he should be bound by the Release.

5For reasons that follow, the Application is dismissed. I find that it would be an abuse of process to proceed with the Application given that the parties have entered into an Agreement to resolve any claim the applicant had or could have under the Code and signed a Release with respect to all outstanding claims under the Code.

6Although the respondent also raised the issue of delay concerning some of the allegations at the preliminary hearing, it is not necessary for me to decide this issue. In any event the applicant was not given sufficient notice of the respondent’s argument.

Decision and analysis

7The Agreement between the parties suggests that the only grievance referred to arbitration was the termination grievance. However, in the recitals to the Agreement, the following is noted:

And Whereas the parties are desirous of resolving all matters relating to the grievance and the Grievor’s employment with and termination from employment on a without prejudice and precedent basis. [Emphasis added.]

8The Agreement specifies that the matter was resolved on the basis that the applicant resigned from his employment and the employer rescinded the December 18, 2013 letter of termination. In addition, the applicant received a small lump sum of money, a letter of employment and an assurance that all inquiries about the applicant would be “responded to in a manner consistent with this letter of employment.” In exchange, the applicant (and union) agreed to withdraw the grievance, sign the Release, and not attend at the respondent’s premises or apply for jobs with it.

9For the purposes of this preliminary hearing, the relevant portions of the Release state:

THIS IS TO ACKNOWLEDGE, that I, Randall Charass, in consideration of the payment referred to in the attached Memorandum of Agreement dated March 6, 2015, do hearby release and forever discharge Centre for Addiction and Mental Health (hereinafter called the “Employer”) …from any and all actions, causes of action, covenants, contracts (express or implied), claims, commitments, promises and demands, whatsoever as against the Releasees which I ever had, now have …by reason of my employment with or cessation of my employment from the Employer and without limiting the generality of the foregoing, I do hereby acknowledge and agree that the payment is inclusive of all payments and obligations owed to me by the Employer including but not restricted to all payments and obligations owed to me pursuant to any disability claim, the common law, the Ontario Employment Standards Act (specifically including, but not limited to, the vacation, termination and severance provisions of the ESA), the Ontario Labour Relations Act and the Ontario Human Rights Code.

AND I hereby declare that I have had the opportunity to seek advice from my Union and that I fully understand the terms of settlement as set out in the attached Memorandum of Agreement, that the terms thereof constitute the sole consideration for this Release and indemnity and that I voluntarily accept such sum stated therein for the purposes of making full and final compromise, adjustment and settlement of all claims as aforesaid. …

10The applicant does not dispute that he signed the Release, Agreement and letter of resignation attached to the Agreement, but submits that he was subject to improper pressure, and that he did not appreciate that he was signing away his human rights claim. Although, he did not use the word “duress” in his submissions, it would appear that this is the basis on which he submits that he should not be bound by the Release.

11For the purpose of determining whether the applicant was subject to duress, I have taken his factual submissions on face value, except where there are contradictions between his written submissions and his oral submissions.

12In the days leading up to the first day of arbitration, the applicant alleges that the documents from the respondent provided to the union were improperly withheld from him. However, even on the face of his written submissions, the issue was not that the union did not want to prevent the applicant from seeing the disclosure, but that it did not want to release the documents to him. Counsel for the union offered to let the applicant review the disclosure in her office and to that end made herself available at a time suggested by the applicant. However, despite saying that he could come to her office at that time, the applicant did not attend the meeting as he saw “no real meaning to it.”

13In his oral submissions, the applicant suggested that he was subject to abusive treatment at the mediation which took place on the first day of the arbitration. He submitted that he was told repeatedly by the union (in particular, counsel for the union) that the respondent had a very strong case against him, that he would lose, and that if he proceeded to arbitration any decision could be searched by future employers. In his written submissions, the applicant also stated that he was told that if he did not resign, prospective employers could find out from the respondent why he had been dismissed.

14In his oral submissions, the applicant stated that he was told by counsel for the union that she would not leave the room until he signed. Later in his submissions, he said that the conduct of the union made him “think” he could not “leave the mediation without signing.” However, at no point did he actually state that he was being held in the mediation room against his will. I would note that he attended this mediation with his husband, and that he also indicated that he spent many hours arguing with counsel about the outcome. Moreover, he did not suggest that he was detained against his will in his written submissions. I am not prepared to accept that the applicant actually believed he could not leave without signing the documents.

15It would not be appropriate for me to determine the accuracy of the union’s evaluation of the relative weakness of his case, but providing an overall assessment of the strength of the case to a litigant is one of the functions of counsel. The fact that prospective employers would have access to the fact of his termination, and the reasons for it, if the applicant did not settle and proceeded to arbitration, is salient information and the union cannot be faulted for pointing this out.

16On the basis of the information before me, I cannot find that the pressure put on the applicant was “illegitimate” or was “applied to such a degree as to amount to a “coercion of [his] will.” See Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 at para. 8-9 and Stott v. Merit Investment Corp., 1988 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (C.A.) at para. 89.

17The applicant also submitted that he did not understand his human rights issues – in particular the harassment that preceded the termination of his employment – were being addressed in the arbitration. That is, since his grievance concerned only the cessation of his employment, he understood that the mediation of it would not be so broad as to include all aspects of his human rights Application.

18The difficulty with this argument is that the language of the Agreement makes it clear that the parties are resolving “all matters” relating to his employment, not just the termination of it. Moreover, the Release states that it releasing the respondent from all claims and causes of actions, and explicitly refers to those under the Code. The applicant did not submit that he did not read these documents or that he did not understand them. In any event, failure to read an Agreement does not exempt the applicant from being bound by it. See, Nolan v. Royal Ottawa Health Care Group, 2014 HRTO 1604 at para. 53.

19Section 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. This is mirrored in Rule A8.1 of the Social Justice Tribunals Ontario Common Rules found in Part 1 of the Human Rights Tribunal of Ontario’s Rules of Procedure.

20The Tribunal has dismissed applications as an abuse of process where the applicants sought to raise before the Tribunal allegations that were the subject of a settlement agreement: See, for example, Solcan v. Kitchener (City), 2011 at paras. 41 and 42 and the cases cited therein. The rationale for not allowing applicants to proceed in these circumstances is set out succinctly by the Tribunal in Nolan, supra at para. 43:

The reason why the Tribunal may determine that it is an abuse of process to permit an applicant to proceed with an application where he or she has signed a full and final release relates to the principle of finality. When two parties agree to settle a legal dispute, 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. Most litigation ends in settlements and almost all settlements include a provision by which a claimant fully releases the respondents from future claims relation to the subject matter of the settlement. To be effective, settlements must be final. Otherwise, parties would have no incentive to enter into settlements to end litigation. It is for this reason that this Tribunal has held that it would be an abuse of process to proceed with an Application when its subject matter is covered by a full and final release, unless there are compelling reasons to set aside the release.

21I am satisfied that there are no compelling reasons to set aside the Release and that it would, therefore, be an abuse of process for this Application to continue.

22The Application is dismissed.