Piatowski v. General Motors of Canada Company, 2016 HRTO 551

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edward Piatowski

Applicant

-and-

General Motors of Canada Company and Gary Athoe

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: April 26, 2016

Citation: 2016 HRTO 551

Indexed as: Piatowski v. General Motors of Canada Company

APPEARANCES

Edward Piatowski, Applicant

Self-represented

General Motors of Canada Company and Gary Athoe, Respondents

David Bannon, Counsel

Introduction

1This Decision explains why the Tribunal, as against the corporate respondent, is dismissing this Application which 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”).

2By way of background, the applicant is a former employee of the respondent. The applicant commenced a prior Application, 2013-13926-I (“prior Application”), against both of the respondents in this Application, among others, while he was still employed with the corporate respondent. It appears from the prior Application that the personal respondent became the applicant’s supervisor in July, 2012.

3A full day of hearing was held in the prior Application before the matter was adjourned to give the applicant time to make proper documentary disclosure. Prior to the resumption of the hearing, a workplace event occurred, which resulted in the applicant’s termination. The applicant’s union filed a grievance of the applicant’s termination.

4The applicant states in this Application that leading up to his signing the Settlement Agreement, he was told that the corporate respondent would not give him his job back, that he would be allowed to retire, but that he also would have to drop his prior Application against the personal respondent, who is also the personal respondent in this Application. The parties reached a settlement in the grievance, and the applicant signed a Settlement Agreement on March 5, 2015. The applicant filed a request to withdraw the prior Application on March 19, 2015, and it was withdrawn on March 20, 2015.

5The Settlement Agreement included a full and final release (“release”). The release states in part:

The Grievant [the applicant] agrees that he has no further claim against General Motors of Canada Limited (GMCL) [the respondent is the successor company of GMCL] arising out of his employment […] He further agrees that GMCL has complied with the Ontario Human Rights Code in respect of his employment and/or the termination of such employment. If he should hereafter make any claim or demand or commence or threaten to commence any action, claim, complaint, application or proceeding against GMCL or any one of more of them [sic] for or by reason of any cause, matter or thing, this document may be raised as an estoppels [sic] and complete bar to any such claim, demand, action, proceeding or complaint.

6On September 29, 2015 the applicant commenced this Application alleging that the respondents discriminated against him in employment on the basis of disability.

7On November 30, 2015 the Tribunal issued a Case Assessment Direction stating that a preliminary hearing would be held because it appeared the applicant signed, as part of a settlement agreement, a full and final release with respect to the same subject matter of the Application, and that to proceed with hearing the Application may amount to an abuse of the Human Rights Tribunal of Ontario’s (HRTO) process.

8The preliminary hearing took place by teleconference call. The applicant and the respondent made submissions.

submissions

9The applicant submits he signed the settlement agreement under duress. He was under stress and pressure, had high anxiety and was embarrassed at being let go. He had to feed his family and had no income, and did not know what to do. He submits he had to sign the settlement agreement to get his pension because he could not let everything fall apart.

10His main submission with respect to why he should be permitted to proceed with this Application in the face of the settlement agreement is that the corporate respondent kept his tools and his professional tickets past the agreed time, and without these he was not able to find other work. In his view, the corporate respondent did not live up to the settlement agreement. He also submits the corporate respondent lied to Employment Insurance that he was on a long term layoff when in fact his employment ended.

11The applicant also makes several submissions including how unfair it was that his employment came to an end while the employment of others did not, and with respect to why he alleges the respondents discriminated against him on the basis of disability.

12For their part, the respondents submit that they not only disagree that they did not live up to the settlement agreement and did not lie to Employment Insurance, but that the issue in this preliminary hearing is to determine if the applicant should be permitted to proceed with this Application. They assert the applicant’s difficulty with Employment Insurance was that he was terminated for cause, and they disagree with the applicant’s assertion about the return of his tools and tickets. In any event, at best the allegation about his tools and tickets would constitute a grievance, not an Application to the Tribunal.

13The respondents further assert the applicant was represented by a sophisticated union when he signed the settlement agreement, a fact with which the applicant does not disagree.

14The respondents submit that the settlement agreement permitted the applicant to be reinstated so that he could retire and access his pension, retiree benefits and an early retirement supplement, which he would not have been entitled to if he had simply been terminated for cause.

15The respondents submit that the release the applicant signed as part of the settlement agreement not only states he has no further claim against the corporate respondent but also specifically refers to the Code.

16The respondents submit that while duress can form a proper basis for overturning a settlement, the test is high and requires an unlawful threat, coercion or improper pressure which overcomes a person’s will. The threshold is higher than just economic pressure, and the applicant has not made any submissions with respect to any other form of duress.

17In reply submissions, the applicant asserts the job he was given was beyond his limitations. When I asked him how this was connected to his signing the settlement agreement that contained the release, he responds he cannot get a job without his equipment, and if he has no equipment he cannot feed his family. He asserts that his prior Application set out a series of “attacks” against him by the personal respondent.

analysis and decision

As against the Corporate Respondent

18The Code does not explicitly bar applications where an applicant has executed a release in favour of a respondent. See, Bielman v. Casino Niagara, 2009 HRTO 123. However, the Tribunal may determine that allowing an application to proceed in such circumstances amounts to an abuse of process.

19In Better Beef Ltd. v. MacLean, 2006 CanLII 17930 (ON SCDC), at paras. 46-48, the Divisional Court confirmed that where “the literal and ordinary meaning of the release” demonstrates a clear intention on the part of the parties to fully and finally release the respondents from all claims, it should not be easily disturbed.

20The decision in Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ON SC), outlines criteria for departing from that principle. The factors in Pritchard are (1) whether the party fully understood the significance of the release; (2) whether the party received sufficient and fair consideration for signing the release; (3) evidence of economic pressure; and (4) evidence of psychological or emotional pressure amounting to duress.

21The applicant does not argue that he did not understand the significance of the settlement agreement that included the release or that he did not get sufficient and fair consideration for signing it. In addition in any event it is not the Tribunal’s role to assess the appropriateness of a settlement the applicant entered into. See, Dickson v. General Motors of Canada Limited, 2013 HRTO 1347 (“Dickson”) at para. 33 and O’Regan v. Firestone Textiles, 2010 HRTO 502 at para. 3, subpara. 18.

22With respect to duress, the Ontario Court of Appeal described the elements of economic duress in Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157, as follows 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.

23I accept the applicant was under considerable financial pressure because he was no longer employed. However, it is common for an employee to face some form of financial pressure as a result of a loss of employment. There is no indication that the applicant faced any pressure beyond what happens in most cases. The fact he felt he had to sign the settlement agreement that included the release in order to get his pension and to get his tools back is not sufficient to constitute a coercion of his will.

24The applicant did not produce any evidence that he could not make choices for himself when he signed the settlement agreement. In addition, he was well-represented by his union when he signed. Although King v. Ontario (Health and Long-Term Care), 2011 HRTO 2228 refers to settlements at the Tribunal, the reasoning applies equally to other settlements. The Tribunal stated in at para. 23:

Parties do generally feel some pressures in the course of litigation, including as they engage in settlement discussions. […] [T]he legal threshold for duress is a high one.

25I find the applicant has not met the high threshold to establish duress. There is no basis to conclude that the release as part of the settlement agreement was signed under duress and should therefore be set aside.

26The applicant argues that the corporate respondent did not live up to its end of the settlement agreement with respect to his tools and tickets. First, the settlement agreement containing the release was signed as part of the settlement of a grievance. Secondly, there was nothing in the settlement agreement that referred to the applicant’s tools and tickets, and the applicant did not produce any other document that referred to the applicant’s tools and tickets that would suggest that it was intended to be part of the settlement agreement. In addition, I agree with the respondent that even if the respondent did not comply with an agreement with respect to tools and tickets, which the respondents deny, this Application is not the appropriate way to seek redress for an alleged failure by the respondent to live up to an agreement reached in a grievance.

27Because the release in the settlement agreement provides for a full and final settlement of the applicant’s claims arising out of his employment with the corporate respondent it would be an abuse of process to allow this Application to continue in the Tribunal’s process against it in the face of the signed settlement agreement containing the release with respect to all claims arising out of the applicant’s employment.

As against the Personal Respondent

28With respect to the personal respondent, the release refers only to the corporate respondent and not to any individuals. As such, the Application is not dismissed as against the personal respondent as an abuse of process.

Next Steps – Summary Hearing

29The focus of this preliminary hearing was the effect of the release. However in reviewing the evidence and the parties’ submissions, it appears that the Application against the personal respondent may have no reasonable prospect of success since it appears the applicant has made no allegations against the personal respondent.

30As such, it is appropriate to hold a “summary hearing” on that issue. The summary hearing gives the applicant an opportunity to more fully explain any allegations contained in the Application as against the personal respondent and to hear argument from the parties before the Tribunal makes its decision about whether all or part of the Application has no reasonable prospect of success.

31Rule 19A of the Tribunal’s Rules of Procedure sets out specific guidelines for this type of hearing and it is important because the procedures for a summary hearing are slightly different than other types of preliminary hearing issues. Most importantly, the parties are not expected to submit documents or call witnesses to testify for the purpose of a summary hearing.

32Unlike other preliminary matters, which are determined on a “balance of probabilities”, the test the Tribunal applies at a summary hearing is whether an application has “no reasonable prospect of success.” If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not dismiss an application, it will continue in the Tribunal’s process. In some cases, the Tribunal may find that only part of the application will move ahead, while part of it is dismissed.

33There are a number of reasons why the Tribunal may decide to hold a summary hearing. In this case the Tribunal has decided to hold a summary hearing because:

a. It appears that the applicant may be unable to prove that there is a connection between what the personal respondent is alleged to have done, and the grounds of disability or sex cited in the Application. That is, although the applicant may believe that the conduct of the respondent is connected to the ground, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain; and

b. The issue the applicant is raising does not appear to fall under the Code. The focus of this inquiry is on the legal basis for the applicant’s claim and whether or not there is any reasonable prospect the allegations may amount to a Code violation.

34At a summary hearing, unless there is some clear evidence to the contrary, the Tribunal assumes the facts alleged by the applicant to be true. For example, if an applicant alleges they were fired from their employment or denied a service, the Tribunal will assume this to be true for the purposes of the summary hearing. However, accepting that someone experienced adverse treatment does not include accepting the applicant’s assumptions or belief about why they were treated this way.

35The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s belief that the disadvantageous treatment he experienced arises from discrimination. In order to warrant proceeding to a full hearing of the merits some evidence must exist, which goes beyond the applicant’s feeling or belief that a prohibited ground of discrimination played a role in what he experienced. As noted above, the parties will not be submitting evidence for the purposes of the summary hearing portion of the preliminary hearing. However, the applicant should be prepared to explain to the Tribunal what the proposed evidence will be if the Application is allowed to proceed to a hearing on the merits.

36The proposed evidence may come in a variety of forms, either as direct or circumstantial evidence. Circumstantial evidence is evidence arising from the circumstances surrounding the alleged discriminatory treatment that might lead the Tribunal to infer that the alleged disadvantageous treatment was linked to a prohibited ground. However, if the applicant is unable to point to evidence, beyond their own assumptions or belief, an application may be found to have no reasonable prospect of success and be dismissed. The Tribunal is mindful of the fact that in some cases an application should proceed further in the hearing process because the respondent is the party who has control over the evidence by which the applicant might prove his or her case.

37While the primary focus in the summary hearing is on the applicant’s proposed evidence, the respondent’s allegations may also be considered where the facts are not in dispute or where it is plainly obvious that a fact must be true. However, the Tribunal is careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

For the Summary Hearing

38The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests available on the Tribunal’s website at www.sjto.gov.on.ca/hrto/.

39No witnesses will be called during the summary hearing but the Tribunal will hear the parties’ arguments about whether all or part of the Application should be dismissed because it has no reasonable chance of success. The applicant will generally proceed first during this summary hearing and must be prepared to address the issues discussed above.

40The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon for the summary hearing no later than 35 days after the date of this Interim Decision.

order

41The Application is dismissed as against the corporate respondent.

42The Registrar will schedule a half day summary hearing by conference call for the Application as against the personal respondent. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the hearing. Although scheduled for a half day, not all summary hearings require a half day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.