HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Pierrette Plante
Applicant
-and-
Foyer Richelieu Welland Inc.
Respondent
-and-
Canadian Union of Public Employees and its Local 360
Intervenor
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Plante v. Foyer Richelieu Welland Inc.
APPEARANCES
Pierrette Plante, Applicant
Britt Backman, Representative
Foyer Richelieu Welland Inc., Respondent
Stanley Lam, Representative
Canadian Union of Public Employees and its Local 360, Intervenor
Anne Gregory, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). In the body of her Application, the applicant also alleges that she experienced reprisal contrary to the Code.
2The Tribunal directed that a summary hearing take place to address a number of preliminary issues with respect to the following issues:
a. Dismissal of all or part of the Application because of delay in filing;
b. Dismissal of some or all of the Application as a result of Minutes of Settlement entered into between the respondent and the intervenor, and signed by the applicant, dated May 14, 2014; and
c. Dismissal of some or all of the Application as having no reasonable prospect of success.
3A teleconference hearing was convened on March 15, 2016 to hear the parties' submissions on the issues outlined above.
decision
Delay
4Section 34(1) of the Code requires that an application be brought within one year of the incident to which it relates or, if there was a series of incidents, within one year after the last incident in the series. Section 34(2) allows the Tribunal to accept an application made beyond this time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
5In the present Application, filed on May 12, 2015, the applicant argues, and I accept, that the last in the series of incidents took place on November 3, 2014, when her employment was terminated.
Abuse of Process
6The relevant section of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended ("SPPA") reads as follows:
23 (1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
7The Tribunal has held that the doctrine of abuse of process can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an Application to continue. The circumstances that can give rise to an abuse of process are not finite and may include, but are not limited to, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness.
8In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of abuse of process is on the integrity of the administrative justice. See Campbell v. Toronto District School Board, 2008 HRTO 62 ("Campbell"), citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.
9The Tribunal's jurisprudence establishes that proceeding with an application may constitute an abuse of process when the parties have previously settled the subject-matter of the Application. See Campbell, above; Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151 ("Messiah"), Zu v. Hamilton (City), 2010 HRTO 2461, and Holowka v. Ontario Nurses Association, 2010 HRTO 2171.
10As recognized by the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, at para. 35, "there is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever form it is brought, the matter is at an end."
11In the present Application, the respondent employer and the intervenor union entered into Minutes of Settlement, signed by the applicant as well as the parties to the agreement, on May 14, 2014, reinstating the applicant to her job, following a suspension.
12The respondent argued that the Application should be dismissed because, by signing the Minutes of Settlement, the applicant agreed that her employment would be terminated should any further incidents warranting discipline occur. The respondent also argued that if the termination of the applicant was problematic, the union would have filed a grievance and it did not do so in this case.
13The intervenor union took no position on the issue but pointed out that the failure to file a grievance by the union was not determinative of the issue at hand.
14The applicant took the position that the Minutes of Settlement addressed one incident and not all of the issues before the Tribunal, particularly incidents that took place after May 14, 2014. The applicant also pointed out that there is no release language in the Minutes. Finally, the applicant argues that she signed the Minutes of Settlement under duress.
15In Messiah, above, notwithstanding the absence of a release, the Tribunal applied the doctrine of abuse of process to dismiss the application where it was apparent from the agreement that the parties intended to resolve outstanding employment issues. The Tribunal stated, at paragraph 23, the relevant inquiry when considering abuse of process is "whether it would be unfair to permit the proceeding to continue having regard to the terms of the memorandum of settlement and all of the surrounding circumstances."
16In the circumstances of this Application, the applicant signed the Minutes of settlement entered into by her former employer and union, following a suspension of her employment reinstating her to her job. It is clear from the language of the Minutes of Settlement that the subject matter of the document was the suspension resulting from an "incident" that took place on April 26, 2014. In my view, it would constitute an abuse of process to permit the applicant to resuscitate and re-argue issues that relate to that incident as it was the subject of the Minutes of Settlement, dated May 14, 2014.
17There is, however, nothing to prevent the Application from continuing with respect to the remaining issue raised as there is no information before me to suggest that those matters have been dealt with appropriately in another proceeding (section 45.1 of the Code) or that it would be "unfair to permit the proceeding to continue having regard to the terms of the memorandum of settlement and all of the surrounding circumstances."
18I turn now to the applicant's final argument, which is that it would not amount to an abuse of process to continue to address the incident covered by the Minutes of Settlement as she signed the document while under duress.
19The Ontario Court of Appeal described the elements of duress as follows in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157, at paras. 8-9:
There is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis.
However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to "a coercion of the will" of the party relying on the concept.
20Parties entering into settlement agreements generally face a number of pressures and often make decisions in difficult circumstances. However, difficult financial circumstances alone are not enough to meet the exacting threshold set out by the Court of Appeal. See also Sinnett v. Orlick Industries, 2009 HRTO 916, and Kailani v. Securitas Canada, 2009 HRTO 1183.
21I have no difficulty accepting that the applicant was struggling with personal and financial issues at the time of the suspension of her employment. The potential loss of one's employment is a difficult event and brings with it a great deal of stress and adjustment.
22However the applicant has not established that, in the circumstances, the pressures she faced amounted to a coercion of the will that warrants the setting aside of the Minutes of Settlement. In reaching this conclusion, I am influenced by the fact that the applicant had the assistance of the intervenor union, who had carriage of the matter.
Reasonable Prospect of Success
23Rules 19A.1 of the Tribunal's Rules of Procedure reads as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
24The issue that Rule 19A requires me to determine is whether the Application has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, then it is dismissed. In the absence of such a finding, the Application proceeds through the Tribunal's normal process.
25In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal stated:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
26The applicant has indicated that she has evidence, both oral and documentary, which could establish that she experienced discrimination in the manner in which her requests for continuing accommodation were dealt with by the respondent as well as her contention that she experienced conduct amounting to reprisal, contrary to the Code. Those allegations will continue in the Tribunal process.
27I am not seized.
Dated at Toronto, this 19th day of April, 2016.
"Signed By"
Jay Sengupta
Vice-chair```