Tarek Ibrahim v. Hilton Toronto, 2016 HRTO 627

Human Rights Tribunal of Ontario

B E T W E E N:

Tarek Ibrahim

Applicant

-and-

Hilton Toronto

Respondent

DECISION

Adjudicator: Alison Renton

Date: May 10, 2016

Citation: 2016 HRTO 627

Indexed as: Ibrahim v. Hilton Toronto

APPEARANCES

Tarek Ibrahim, Applicant

Janina Fogels, Counsel, then Victoria Shen, Counsel, then Tarek Ibrahim, Self-represented, and then Juliet Mohammed, Counsel

Hilton Toronto, Respondent

Andrew Zabrovsky, Counsel

1This Decision is about whether or not there is a settlement of the applicant’s Application. The respondent submits that there is a settlement, whereas the applicant submits that there is not.

2For the reasons set out below, I find that there is a settlement. In writing this Decision, I am mindful that the terms of settlement contain a confidentiality clause and accordingly have attempted to write this Decision so that the terms themselves, or as little as possible, are disclosed.

Background

3This Application alleges discrimination with respect to employment because of family status, marital status, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

4This is the applicant’s second Application against the respondent. The applicant was self-represented in his first Application, which alleged discrimination in employment on the grounds of race, colour, place of origin, ethnic origin, creed, sex and family status, which was partially upheld. See Ibrahim v. Toronto Hilton, 2013 HRTO 673 (“the first Decision”). This Application was deferred pending release of the first Decision.

5After the first Decision was released, the parties participated in 14 hearing days pertaining to the merits of this Application, until the respondent submitted that there was a settlement that resulted following mediation-adjudication. There were five additional days held to hear the parties’ positions on whether or not there was a settlement. Specific to the settlement issue, the Tribunal heard evidence from the applicant and Jill Miller, area director, human resources, for Hilton in Canada. Previously Ms. Miller was the director of human resources for the respondent. She attended all of the hearing dates, and was the respondent’s instructing client.

6The applicant was initially represented by Janina Fogels, a lawyer from the Human Rights Legal Support Centre (“the Centre”), for the first ten days of the merits hearing, and then by a second lawyer from the Centre, Victoria Shen. Ms. Shen assumed carriage of the file from Ms. Fogels, whose position at the Centre changed. Ms. Shen was present during some of the hearing dates when Ms. Fogels represented the applicant, and represented the applicant until after the respondent submitted that there was a settlement. After the respondent stated that there was a settlement, Ms. Shen and the Centre no longer represented the applicant, who was self-represented for several hearing dates. On the eighteenth and nineteenth hearing dates, the applicant was represented by new counsel, Juliet Mohammed.

7Neither party sought the Tribunal’s permission to record the hearing, as is required in the Tribunal’s Practice Direction on Recording Hearings. During the latter hearing dates, the applicant had his cellular telephone on his table, and later on the witness table while he testified, but assured me that he was not recording the proceeding.

8Mediation-adjudication, in accordance with Rule 15A of the Tribunal’s Rules of Procedure, was used by the parties on the second day of the hearing. Ms. Fogels represented the applicant, Mr. Zabrovsky represented the respondent and Ms. Miller was the respondent’s instructing client, and I acted as mediator-adjudicator. A Mediation-adjudication agreement was signed. This process settled part, but not all, of the Application.

9Mediation-adjudication was used again on the thirteenth and fourteenth days, which were November 17, 2014, and February 12, 2015. Again I acted as mediator-adjudicator. On these dates, the applicant was represented by Ms. Shen. On November 17, 2014, Ms. Shen was accompanied by a student-at-law. On February 12, 2015, two students-at-law were also present along with Ms. Shen. One student-at-law attended with Mr. Zabrovsky and Ms. Miller.

10The respondent submits that on February 12, 2015, the applicant made a written offer to settle that he presented to the respondent in the form of executed Minutes of Settlement, Release and the Tribunal’s form, “Confirmation of Settlement (Form 25)” (“Form 25”), which the respondent accepted orally and then in writing. The respondent confirmed its position at the commencement of the February 13, 2015 hearing date, stated that it had copies of these documents executed, and submitted that whether there was a settlement was an issue that the Tribunal needed to determine. Ms. Shen advised the Tribunal that it was the applicant’s position was that there was no settlement and requested an adjournment to review the legal issues arising from this situation and to provide legal advice to the applicant.

11As hearing continuation dates had been scheduled by the Tribunal in October 2014, by a Notice of Hearing (Continuation) for February 25 and 27, April 29 and 30, and May 11, and 12, 2015, I granted the applicant’s adjournment request. I advised that I would hear submissions on the next scheduled hearing date of February 25, 2015 about whether there was a settlement and whether this issue was one that should be determined by me or another adjudicator as I was involved in the mediation-adjudication.

12On February 23, 2015, Ms. Shen wrote to the Tribunal to advise that she and the Centre were no longer representing the applicant.

13On February 25, 2015, the hearing resumed. Neither party objected to me determining whether or not there was a settlement. The Tribunal heard the respondent’s submissions that there is a settlement. The respondent referred to a number of cases during its submissions. The applicant confirmed that his address and telephone number were as Ms. Shen represented in her February 23, 2015 correspondence.

14After hearing the respondent’s submissions, the applicant requested an adjournment, until February 27, 2015, the next scheduled hearing date, to review the respondent’s case law. I granted the adjournment request as he recently became self-represented. I noted that the applicant would have time to review the case law and formulate his submissions during the adjournment. Immediately after issuing this oral ruling, the applicant sought a further adjournment to the April 29, 2015 hearing date so that he could retain counsel. This further adjournment request was objected to by the respondent’s counsel, who submitted that the applicant’s adjournment request was a stalling tactic, and that the applicant was attempting to prolong the matter. I reiterated that the hearing was adjourned to February 27, and that, in the meantime, the applicant could take steps to find counsel and prepare his submissions in response to the respondent’s position that there was a settlement of his Application. In my presence in the hearing room, the respondent’s counsel attempted to give material to the applicant, who refused to accept it.

15The hearing resumed on February 27 at which point the applicant made submissions as to why there was no settlement, and submitted case law. He did not seek a further adjournment. He did not state again that he found or was attempting to find new legal representation. He did not object to me deciding whether or not there is a settlement.

16During the applicant’s submissions, the Tribunal explained to him that the conversations that he had with his former lawyer(s) are subject to solicitor/client privilege, meaning that they are confidential. The Tribunal also advised the applicant that he did not have to disclose them, but if he did, then he would be waiving privilege over that part of their discussion, and perhaps other parts, such that the discussion would not remain confidential. The applicant stated that he understood.

17On February 27, 2015, the applicant submitted that there is no settlement, based upon the following points:

• The parties did not understand that there was a settlement on February 12, 2015 or the February 13, 2015 hearing date would no longer have been required and would have been cancelled;

• On February 12, 2015, he was pressured by Ms. Shen into remaining and participating in mediation-adjudication, did not receive the labour law advice that he required, and experienced duress;

• He was not medically fit on February 12, 2015 to continue with mediation-adjudication and to make a clear decision, and the parties were aware of his medical condition; and,

• Any settlement which is forced upon him is a violation itself of the Code because of his medical condition which was known to the parties.

18The February 27, 2015 hearing date ended with the Tribunal stating that it would consider the parties’ submissions. Subsequently, the Tribunal issued a Case Assessment Direction (“CAD”), dated March 13, 2015, containing directions, as set out at paras. 12 to 16:

There have been more than 10 days of hearing before the February 12, 2015 date, during which time the applicant had legal representation from the Centre. Given that the applicant’s legal representative recently advised that she and the Centre are no longer representing the applicant, and given that the applicant’s submissions in support of his position that there is no settlement raise questions of fact, in the interest of procedural fairness the applicant should be afforded an opportunity to provide any evidence he wishes in support of his positions. Accordingly, I will extend to him the opportunity to testify about the points set out above [set out in para. 16 above] on the next scheduled hearing date, April 29, 2015. He will have the opportunity to testify in examination-in-chief about these points and will be subject to cross-examination too. If he wishes to call any witnesses in support of his positions or lead other evidence, he must deliver any witness statements or documents to the Tribunal, copying the respondent, no later than April 10, 2015.

With respect to the applicant’s allegation that he was not medically fit on February 12, 2015, if he intends to provide any medical documentation in support of that position, it should, if possible, address the following issues:

a. Whether the applicant was medically capable of making an informed decision on February 12, 2015, and if not, why not;

b. Any dates upon which the medical practitioner observed the applicant in support of the conclusion in a. above; and,

c. The medical basis upon which the medical practitioner relies with respect to any conclusion that the applicant was not medically capable of making an informed decision on February 12, 2015.

The applicant is directed to file any such medical documentation with the Tribunal, copying the respondent’s counsel, by Friday, April 10, 2015.

Should the applicant intend to rely upon any such medical documentation, he is directed to provide a copy of this Case Assessment Direction to his medical practitioner and tell his medical practitioner that he or she may be required to testify, through at least cross-examination, at the hearing, including at the April 29 or 30, 2015 hearing dates.

If any such medical documentation is being relied upon by the applicant, the respondent is required to advise the Tribunal, copying the applicant, by Friday, April 17, 2015 whether or not it requires the applicant’s medical practitioner to be available for cross-examination at the April 29 or 30, 2015 hearing dates and whether or not it requires the medical practitioner to testify in-person or by telephone.

Furthermore, by Friday, April 17, 2015, if the respondent wishes to call any witnesses or lead any evidence, it must deliver to the applicant and file with the Tribunal any witness statements or documents no later than April 17, 2015.

If the applicant is seeking to have a representative or representatives from the Centre testify about these issues, it is his responsibility to make these arrangements. He can obtain a summons to witness from the Tribunal, upon request by email. Information about summonsing a witness can be found [i]n the Tribunal’s “Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario”.

19Prior to the next hearing date, April 29, 2015, the applicant filed notes taken by Judith Ready, from St. Joseph’s Health Centre. Ms. Ready self-identifies in her notes that she is an occupational therapist. It appears that she was acting in a counsellor’s role when the applicant spoke with her. Her notes are dated February 18 and 19, and March 13, 2015. Some of the information within them was redacted.

20Also prior to the April 29, 2015 hearing date, the respondent filed a Request for Order During Proceedings (“RFOP”) alleging that the applicant breached the terms of settlement.

21On April 29, 2015, the hearing resumed. The applicant was represented by Juliet Mohammed, who continued to represent the applicant until the hearing concluded on April 30, 2015. Ms. Mohammed did not object to me determining whether or not there is a settlement.

22On April 30, 2015, Ms. Mohammed advised at the start of the hearing that the applicant was willing to enter into mediation with the respondent. I directed the parties’ counsel to discuss that option outside of the hearing room. When counsel entered the room, Ms. Mohammed advised that the respondent was not prepared to have mediation discussions. The hearing about whether or not there was a settlement then continued.

The April 2015 Hearing Dates

23During the April 29 and 30, 2015 hearing dates, several additional issues arose. They were: the admissibility of Ms. Ready’s notes; the respondent’s RFOP; the applicant’s attempt to rely upon additional medical information during his evidence; and whether the applicant could call Jill Miller to testify as his witness.

24Both parties advised that they would not be calling Ms. Shen as a witness.

The admissibility of Ms. Ready’s notes

25The applicant advised the Tribunal on April 29, that he was not calling Ms. Ready as a witness. However, he submitted that her notes should be entered as an exhibit and accepted by the Tribunal as truth of their content because they are a contemporaneous account of what transpired in the applicant’s mind on February 12, 2015 during mediation-adjudication and because Ms. Ready has the expertise to assess the applicant’s state of mind. The applicant stated that the redacted portions contained solicitor-client information, over which he was claiming privilege.

26The respondent objected to the introduction of Ms. Ready’s notes. It submitted that they are hearsay as Ms. Ready was not being called as a witness, the notes were not contemporaneous as they started six days after the February 12, 2015 mediation-adjudication date, and were not Ms. Ready’s assessment of the applicant’s state of mind, but rather an accounting about what the applicant told her.

27After hearing the parties’ submissions and the applicant’s evidence, I issued an oral ruling admitting the notes, including those portions that were redacted. I stated that they could be marked as an exhibit, but prohibited any questioning on them because Ms. Ready was not being called as a witness. I advised that that there may not be any weight attached to them when reviewing them to write this decision because Ms. Ready was not called as a witness.

The Respondent’s RFOP – Breach of Settlement

28On the April 29, 2015 hearing date, the respondent submitted, as set out in its RFOP, that the applicant breached the minutes of settlement because he agreed, in the minutes, that he would cease all further proceedings before the Tribunal, yet the hearing was still continuing. The respondent submitted that it was incurring legal fees for which it could not recover. The respondent also submitted that another breach occurred because, according to an email the applicant sent to the respondent’s counsel, he had contacted the media.

29The applicant did not file a Response to the RFOP but submitted, during the April 29, 2015 hearing, that the RFOP could not be determined until after the Tribunal decides whether or not there is a settlement. The applicant’s position is that there is no settlement, but notwithstanding this position, he has not gone to the media, and his email is not a violation of the minutes. The applicant submitted that the respondent was trying to further delay the proceedings and exhaust his resources. The applicant also stated that the fact that an RFOP was filed, rather than a Form 18 Breach of Settlement, indicates that the respondent does not believe that there is a settlement.

30I orally ruled that I would not, at this point, hear any further submissions about the respondent’s RFOP. I ruled that if a settlement was found, there could be further directions issued by the Tribunal about what, if anything, to do with this outstanding RFOP. I reminded the parties that there are time limits under section 45.9 of the Code in relation to allegations that there has been a breach of settlement.

The Applicant’s Attempt to Introduce Medical Documentation During his Testimony

31During his examination-in-chief, the applicant attempted to introduce as exhibits new documentation that had not been disclosed prior to the hearing dates about whether or not there was a settlement. The first document was a medical report from February 2013, and the second was a print out from a website called drugs.com about the side effects of specified medications. The respondent objected to the introduction of this material.

32I did not allow either document to be introduced during the hearing. The print out from drugs.com had not been produced prior to the hearing despite a specific production direction in the CAD, and the February 2013 medical report was two years before the mediation-adjudication date. Furthermore, the medical report noted that the applicant declined to take any medication, which was inconsistent with the applicant’s position during the hearing that he had taken medication on February 12, 2015.

Jill Miller Testifying

33On the last day of the hearing, and the day after he testified, the applicant stated that he wanted Jill Miller to testify as his witness. He had not subpoenaed Ms. Miller, stating that he did not know that he could summons her, and had not previously identified her as a potential witness. He thought the respondent would call her as a witness. He wanted her to testify, he stated, to establish that there was no meeting of the minds about terms of settlement.

34The respondent objected to the applicant calling Ms. Miller as a witness, stating it was inappropriate for one party to call the other party’s instructing client, and, more importantly, that this was being raised on the last day of the hearing. The respondent submitted that the applicant could not continue to claim that he did not know how to summons a witness, since he had counsel for the last several hearing dates. If the Tribunal decided that Ms. Miller’s evidence was necessary, the respondent stated that it would call her as a witness.

35I orally ruled that the applicant could not at this point call Ms. Miller to testify as his witness and denied him the opportunity to re-open his case. I gave the respondent the opportunity to respond to the applicant’s evidence by calling Ms. Miller, or anyone else. The respondent decided to call Ms. Miller as a witness. She was cross-examined by the applicant. Her evidence is set out below.

The Exhibits

36In addition to the 95 exhibits that had already been entered during the merits hearing, the parties entered a number of other exhibits during the settlement portion of the hearing. This included: Minutes of Settlement (“the minutes”), Release and Form 25 (collectively “the settlement documentation”) which were executed only by the applicant (both parties’ copies of the minutes were introduced separately); minutes and Form 25 executed by both parties; documentation about the respondent’s attempts to deliver the terms of settlement to the applicant; notes taken by Ms. Ready; an email from the respondent’s counsel to Ms. Shen; and an email from the respondent’s counsel to the Tribunal’s Registrar.

The Evidence

37As set out above, after the respondent claimed that there was a settlement, the parties made submissions about whether or not there was a settlement. During the applicant’s submissions, he raised four points upon which he claimed there was no settlement, and the Tribunal subsequently issued a CAD setting out various directions and stating that the applicant (and respondent) would have the opportunity to testify. The applicant and Ms. Miller testified and after their evidence was tendered, the parties had an opportunity to make further submissions based upon the evidence that had been given.

38I am setting out the parties’ evidence and then their submissions, which were given before and after the evidence, so that they may be considered in their totality. However, this order does not reflect whose onus it is to prove or disprove that there is a settlement. That issue is specifically addressed in the body of the Decision.

The Applicant’s Evidence

a) Examination-in-chief

39The applicant testified that the decision to participate in mediation-adjudication on February 12, 2015 was made between Ms. Shen and Mr. Zabrovsky. He did not want to participate in it as he believed it was a tactic employed by the respondent to stall the proceedings. Although he was not prepared for it, and did not expect it, he participated in it, along with Ms. Shen and the students-at-law.

40He signed the settlement documentation because he was mentally and physically exhausted, wanted the process to be finished, and wanted to go home. The minutes set out a global monetary amount, with three breakdowns or allocations. The global amount and one of the breakdowns were specified, but the two remaining allocations were blank. Those amounts continued to be negotiated after he signed the settlement documentation.

41During the mediation-adjudication, he was not prepared to calculate his losses or damages from the last mediation date, which was in November 2014, to February 12, 2015, because he did not have with him the right information about the breakdowns or the consequences of the breakdowns. At some point on February 12, 2015, he realized that his calculations did not make sense as they would not cover his losses and damages. He was shocked.

42The applicant felt that it was an unfair settlement. He had not yet been able to secure employment, although he had an interview the day before, and felt he would be in a worse position than he had been before. He testified that he hoped to be heard by the Tribunal and to have his day in court.

43He testified that he raised his concerns about the calculations with me, said he did not “want to do this”, and refused to continue. At some point during the day, although he did not know the time, he told me, as the mediator and in the presence of Ms. Shen and the students-at-law, that he required some accounting advice or employment advice because his analysis of the calculations would not cover his damages. He testified that I told him that he should discuss this with his lawyer. When he realized the consequences of the deductions from the breakdowns, he withdrew his offer. He testified that no one told him that it was too late as there was already a settlement.

44On February 12, 2016, the applicant testified that he was under the influence of medication, Adavan, which is a prescription medication recommended by his psychiatrist, but prescribed by his family doctor, which he takes on an as-needed basis. It is used to calm him, reduce his anxiety level, and prevent panic attacks. After he requested accounting advice, his medical state started to escalate and his mental status was very bad. He could hear words, but not understand them and could not make a decision. He started to have a panic attack and his medical condition was such that he could not negotiate further. He was mentally and physically finished and he wanted to go home. He testified that if someone had asked him to commit murder, he would have because he was extremely ill and just wanted to go home.

45He spoke with Ms. Shen and told her that he did not want to participate any further in the process. He testified that he told me that he did not want to participate any further, and I told him that he would have to continue with the hearing process, to which he replied, “yes please”. He testified that I left to speak with the respondent. When I returned, the applicant testified, I told him that the hearing would resume the next day and that the respondent would be bringing a motion to dismiss his Application on the basis that he did not advance enough evidence against them during the merits hearing. The applicant was surprised with the respondent’s position and said that he would need more time to prepare for this issue. Further, the applicant testified, he apologized for the wasted time and I told him that he could go home, think about it, and if he refused the settlement, the hearing would resume the next morning.

46The applicant testified that he told me that he was not sure whether or not the respondent had accepted his offer as there were further negotiations about a letter, which was an attachment to the minutes, and the amounts to be attributed to two breakdowns. He testified that when he settled one of his issues earlier in the hearing process, using mediation-adjudication, he did not have to attend the hearing the next day.

47Before he left for the day, he asked for a copy of the minutes and release that he had signed, which I photocopied and gave to him. These copies were marked as an exhibit. The respondent’s signature is not on this copy. He left the Tribunal’s hearing centre after 5:00 p.m.

48On February 13, 2015, he received a letter from the respondent taking the position that there was a settlement. Everyone was shocked with this position, he testified, and Ms. Shen stated in the hearing room that there was no settlement. This was a stalling tactic used by the respondent, which should not happen at the Tribunal, and the applicant felt victimized because the respondent has the financial means to continue with the hearing. The respondent stated, the applicant testified, that the Tribunal did not have the jurisdiction to consider this issue and that the respondent would proceed with this issue before the courts. The rest of the hearing day was then adjourned.

49After the hearing was adjourned, the applicant called the hospital to speak with his psychiatrist, because of the toll this information had on him. He was told that his psychiatrist was not there. He went to the hospital the following day and learned that his psychiatrist was on sick leave, so he accepted the first available appointment with Ms. Ready. He told Ms. Ready about this experience, his mental state, and how he felt. He testified that he did not know that she was taking these reports, and he had no intention to use the reports.

50The applicant testified that he felt victimized by the respondent during the hearing process. He waited three years subsequent to his termination to have his issues determined by the Tribunal, felt cornered to do something else and he needed some advice. He testified that he did not accept the material the respondent counsel attempted to give him on February 13, 2015 because there was no settlement.

b) Cross-examination

51The applicant agreed that the parties participated in mediation-adjudication in November 2014, although he could not remember details including the amount upon which he offered to settle, and the terms upon which the respondent was prepared to settle.

52He also could not remember a number of details from the February 12, 2015 mediation date, including the monetary offers exchanged between the parties, apart from the final global amount.

53He agreed with the following:

• He orally offered the global amount which is reflected in the settlement documentation;

• he wanted changes to the letter which is appended to the minutes, including language changes and who would sign the letter;

• the respondent agreed to make changes to the letter and agreed with whom he proposed would sign the letter;

• although there were further language changes to the letter that he wanted, the agreement about who would sign the letter and the language changes were done before he signed the settlement documentation;

• the settlement documentation contained his signatures and those of Ms. Shen;

• he signed the settlement documentation and then went for lunch;

• although he did not read the paragraph in the minutes which confirmed that he had the opportunity to receive independent legal advice, he had legal advice before he signed the settlement documentation;

• he did not tell anyone that he was having difficulty understanding words in the settlement documentation;

• he did not tell me or Ms. Shen about the concerns he had with his calculations, but instead told himself; and

• all of his discussions with me, as the mediator-adjudicator, were in the presence of Ms. Shen and the two students-at-law.

54He did not agree that there would be no further discussion about the global amount if the respondent agreed with the global amount in the settlement documentation. He believed that negotiations were not over because he wanted additional language changes to the letter and because the two allocations were still being discussed. He agreed that there was an offer, but disagreed that there was an agreement by the time the parties left on February 12, 2015. He testified that he told me, as mediator-adjudicator, that he did not know if the respondent had accepted the global amount.

Jill Miller’s evidence

55Ms. Miller testified as a witness for the respondent. She attended all of the hearing dates, including February 12, 2015, as the respondent’s representative and had authority to bind the respondent in a settlement.

56She testified that the parties participated in mediation-adjudication in November 2014. During those discussions, the applicant offered to settle at a specific amount and the respondent offered to settle at a different, lower, amount.

57On February 12, 2015, Ms. Miller testified, the respondent proposed an initial offer, to which the applicant responded with an amount that was higher than the amount for which he offered to settle at the November 2014 mediation-adjudication. Ms. Miller testified that the parties went back and forth a couple of times with the respondent increasing its offer and the applicant lowering his offer, and she testified about the specific amounts of the offers. She testified that the exchange of offers on February 12, 2015 was conducted by me, as the mediator-adjudicator, and that I told the respondent that I thought the applicant’s last offer was probably the lowest that he would go during the settlement discussions. The respondent responded to the applicant’s last number with a lower amount, and then the parties discussed the details of the letter.

58The applicant wanted some changes to the letter including some language changes and who would sign it. The respondent agreed with some of the changes and agreed with the applicant’s request about who would sign it. Following this, Ms. Miller testified, I presented the respondent with the settlement documentation, consisting of minutes, letter, release and Form 25, each drafted and executed by the applicant and Ms. Shen. A global amount was set out, with three breakdowns. One of the breakdowns was specified, but two were left blank. Ms. Miller testified that the signed settlement documentation indicated, to her, that the applicant was satisfied with the settlement and its terms were acceptable to him and he was prepared to end the whole situation.

59Ms. Miller testified that upon receiving the settlement documentation, she advised that she would need to seek authorization to settle for the global amount set out in the settlement documentation. She then sought, and obtained, that approval and communicated to me, as the mediator-adjudicator, that the respondent was prepared to settle for the global amount. She believed that this agreement was communicated to the applicant. Ms. Miller was never told by me, or anyone else that day, that the applicant later withdrew his offer.

60After advising that the global amount was agreed to, the respondent said that there was a typographical error in the release which needed to be amended. The amendment was made and the applicant and his lawyer initialed the changes.

61Subsequent to this, there were further discussions about how the two remaining breakdown amounts would be specified. The respondent was told that the applicant wanted to seek accounting advice, to which the respondent agreed, and then Ms. Miller signed the settlement documentation and initialled the change in the release. She was not required to execute the release as it did not pertain to the respondent. In cross-examination, Ms. Miller testified that she signed the settlement documentation towards the end of the day, before she left the Tribunal. She believed that it was emailed to the applicant’s counsel later that night. There was no deadline specified for when the applicant could obtain accounting advice.

62When Ms. Miller left the Tribunal, it was her understanding that there was a settlement in place, the applicant had time to get some accounting advice and that the parties would meet the next morning.

63At no time did the applicant advise the respondent that he was withdrawing his offer.

64Ms. Miller was cross-examined about an email that the respondent’s counsel sent to Ms. Shen on February 13, 2015, at 12:09 a.m., and specifically why the wording used was “…it is Hilton Toronto’s position that this matter has been resolved” rather than “the parties’ position”. Ms. Miller testified that she did not write the email so she could not speak to the language used within it. She was also asked whether there was a deadline for the allocation of the amount, to which she testified that she did not believe so as there were further discussions about that. She was then questioned in cross-examination why the email gave a deadline of February 17, 2015. She testified that the applicant had been given time to seek accounting advice and the respondent was telling him that if it did not receive further instructions about the allocations, it would pay out the remaining two allocations.

65The parties returned to the Tribunal on February 13, 2015, because that date had been scheduled for a long time and the parties were instructed to return the next day. The only outstanding issue was the allocation of funds and the applicant was given time to seek accounting advice. Ms. Miller testified that she knew that the respondent’s counsel had discussions with the applicant’s counsel, but did not know all the details of those discussions.

The Respondent’s Submissions

66The respondent requested that the Tribunal respect the confidential terms of the minutes when writing this Decision, and not reveal any terms that would undermine the confidentiality clause or the mediation-adjudication process.

67The respondent submitted that it did not take any legal position about whether or not I, as the mediator-adjudicator, should determine whether or not there is a settlement. It submits that the question of bias, and reasonable apprehension of bias, is a question left to the decision-maker. It pointed out that under the Code, adjudicators have broad discretion with respect to the hearing process.

68The respondent submitted that on February 12, 2015, the parties entered into a binding settlement from which the applicant was trying to resile because he changed his mind. The respondent submitted that it would make its submissions first as the applicant was, at the time the initial submissions were made, no longer represented by counsel. It also submitted that the applicant bears the onus of explaining why the settlement does not exist or why the settlement should not be enforced and the fact that the respondent was proceeding first with its submissions should not be interpreted as agreeing that it had the burden of proving that there was a settlement.

69The respondent submitted that Ms. Miller was a credible witness. She testified in a forthright and honest manner to the best of her ability and based upon facts and information as she understood them. Her evidence is consistent with the documentary evidence, and the respondent submits that the Tribunal should find her to be a credible witness.

70The applicant is not, the respondent submits, a credible witness. It submits that there are a number of inconsistencies in his evidence and he attempted to “walk the line” or “sit on both sides”. He can remember details which show him in the best possible light, such as what he told me, the mediator-adjudicator, a non-compellable witness, about his medical state and accounting advice, yet he cannot remember the previous offers that were exchanged between the parties, apart from the final global amount, or the specific changes he requested be made to the letters. He claims not to have read the settlement documentation, yet he prepared the settlement documentation, executed it, and then provided it to the respondent. He testified that he signed the settlement documentation because he wanted to be finished with the process and go home, and then took the position that he did not know there was a settlement, did not know it was binding because he had to come back the next day, and that there were further items to negotiate. The respondent submits that the applicant is being “intellectually dishonest” with this position, given that part of the Application was settled earlier when the applicant signed settlement documentation.

Applicant’s Intention to be Bound by the Settlement

71There are a number of points, the respondent submitted, which indicate that the applicant intended to be bound by the terms of the settlement. This includes the written offer, consisting of settlement documentation, which the applicant presented to the respondent after participating in mediation-adjudication for several hours on February 12, 2015, as well as the fact that the documentation was executed by the applicant and witnessed by Ms. Shen. The offer could be accepted or rejected by the respondent.

72The release by itself, the respondent submitted, signifies the applicant’s intention to be bound by the written offer. The release says that the applicant releases all claims against the respondent. It also indicates the applicant’s satisfaction with the terms of the settlement because in consideration for the terms of settlement, the minutes require the applicant to furnish a release, which the applicant executed and which was witnessed by Ms. Shen. It would be an abuse of process to continue with the Application in light of the signed release. The terms of the settlement are not unconscionable or unfair for the applicant.

73One clause of the minutes says that the minutes and the release constitute the entire settlement between the parties.

74The applicant’s executed Form 25 indicates his intention to close the Tribunal file and end his Application. It conveys to the respondent that it has to agree with the offer for the file to be closed and the Application to be ended. It also indicates the applicant’s intention to comply with the minutes, as the first term requires him to execute the Form 25 and file it with the Tribunal.

75Another term is the applicant’s recognition that he had reasonable opportunity for independent legal advice, and signed the minutes of his own free will and without duress or coercion. The applicant’s signature on the minutes and the release were witnessed by his lawyer. He cannot take the position that she was not competent, being a lawyer from the Centre, which is created by statute. The respondent notes that the applicant did not previously raise an objection to Ms. Shen participating in the Tribunal’s proceedings, including mediation-adjudication discussions which commenced in November 2014, and any attempt to take issue with his legal representation is after Ms. Shen and Centre withdrew representation from the applicant and after the applicant took the position that there was no settlement.

Requisite Elements of a Settlement and Essential Terms

76The respondent submits that a legally enforceable agreement does not have to be in writing or signed, but can be an oral agreement. What is required is an offer and then acceptance on the essential terms of the settlement. The respondent submits that this occurred with the applicant. In many situations, the respondent submits, there is an oral settlement, with settlement documentation requiring signatures subsequently mailed out.

77During the negotiations, the applicant orally presented a global amount, twice, which, the respondent submits, was agreed to by the respondent. At this point there was a settlement. After the global amount was agreed to, the parties had further discussions about changes to the letters, appended to the minutes, which would be prepared by the respondent.

78After the quantum and letter changes were made, the applicant then presented his written offer in the form of the settlement documentation. Ms. Miller testified that the respondent orally accepted the global amount. Her evidence, as well as that by the applicant, was that the only issue left to determine was the amount of the two allocations. It was at this point that the applicant indicated that he wanted to obtain accounting advice about the remaining allocations.

79The applicant’s request to obtain accounting advice about the two allocations was after the settlement crystalized and constituted “buyer’s remorse” as the applicant realized that the global amount was not enough to pay off his debts. The Tribunal may feel sorry or badly for the applicant, but, the respondent submits, that does not mean that there is no settlement. Ms. Miller’s evidence confirms that the respondent gave the applicant time to get accounting advice.

80The acceptance of the global amount demonstrates, the respondent submits, that all of the essential terms of the agreement had been agreed to. The remaining two allocations are not essential terms of the settlement and are not factors that can hold up a settlement. The fact that two of the allocations remain outstanding does not mean that the entire amount does not have to be paid. This is similar to parties agreeing to terms of settlement and then not being able to agree on release language. In those types of situations, there is still a settlement. After the applicant presented his offer, the respondent submitted that the respondent advised the applicant, through counsel, that there was an error in the release language which needed to be changed. The applicant initialled the change.

81In presenting his written offer, the applicant made a choice to leave two of the three allocations of the quantum blank. The offer was accepted by the respondent and the applicant must live with the offer that he made.

82The fact that the respondent sent an email to the applicant’s counsel, and the timing of that email, is a red herring and does not undermine the respondent’s position that it accepted the offer, orally, and then in writing and that there is a settlement. If the respondent was weighing its options about enforcing the settlement, bringing a non-suit motion, or contemplating other legal options, this does not mean that there was no settlement. When the applicant took the position that there was no settlement, this limited the options that were available to it, and the respondent put all of its cards on the table to prevent the applicant from resiling from the settlement.

Abuse of Process

83The respondent submits that the applicant’s actions amount to bad faith and an abuse of process. It would be improper to allow the applicant to resile from his own agreement. He cannot make an offer, find out the lengths the respondent was prepared to reach a settlement, test the waters, get an agreement, and then say, “no, I’m not interested.” The applicant’s actions do not allow the respondent to trust him, and the respondent submits that the Tribunal should not trust him either.

84The fact that the applicant will not now allocate the remaining two breakdowns, and is attempting to resile from the agreement, is an abuse of process. The respondent suggested that the Tribunal would not permit a respondent to do this “if the shoe were on the other foot.” The fact that the parties cannot agree on how the remaining two allocations are to be paid does not mean that the entire amount does not have to be paid. This is similar, it submits, to parties agreeing to terms of settlement and not being able to agree on release language. In those types of situations, there is still a settlement.

85In accordance with the principles of finality, the Tribunal ought to find that there was a settlement, accept the Form 25, and close the file. It would be an injustice for the Tribunal to permit the applicant to resile from the settlement and it would bring into question the efficacy of the adjudication process, where parties put trust into the Tribunal’s process and enter into good faith negotiations every day. It is a further injustice that the respondent is required to attend before the Tribunal on dates subsequent to reaching a settlement, incurring costs for which it cannot recover, so that the Tribunal will conclude that there is a settlement and the respondent can enforce its terms.

The Applicant did not Withdraw his Offer

86The respondent submits that at no time did the applicant withdraw his offer. Ms. Miller’s evidence is that the applicant did not withdraw his offer, and once the respondent accepted the offer, the applicant’s right to withdraw “faded into the ether” and was gone.

Medically Unfit

87The respondent submits that the threshold to establish that someone is medically incapable of entering into a settlement is extremely high, and must be supported by evidence from a medical practitioner, not just the applicant’s own oral evidence. Despite directions in a CAD, the applicant has provided no current medical documentation indicating that he was medically incapable of participating in the February 12, 2015 mediation-adjudication. He had the means, through at least his counsel, Ms. Mohammed, to subpoena medical practitioners to testify about this.

88Further, the evidence the applicant testified about does not support his position that he was medically unfit to participate in mediation-adjudication and is self-serving. He testified that he experienced anxiety, wanted things to be over and done with, felt “sick mentally”, and was not mentally prepared for mediation-adjudication. He testified in examination-in-chief that he had trouble reading the settlement documentation, but admitted in cross-examination that he did not tell anyone this. His anxiety appeared to heighten when he started to calculate his losses.

89The respondent submitted that the evidence the applicant presented does not establish that he was not capable of understanding the terms of the settlement documentation which he executed, including the significance of the release. The evidence the applicant presented undermines his position that he was not medically capable given that he testified that he realized, after he presented the executed settlement documentation, that he would still incur losses and after he testified he wanted to get it over with and after discussions about changes to the letters were negotiated.

Other Issues

90The respondent submits that some of the applicant’s positions, as identified in the CAD, are no longer being pursued. This includes his earlier position that he was coerced into participating in mediation-adjudication, and that he was not given time to get accounting advice. The respondent submits that Ms. Miller’s evidence is clear that the applicant was given the opportunity to obtain accounting advice.

91The respondent submits that it attempted to comply with the terms of the minutes, but that the applicant has attempted to frustrate the respondent’s attempts to comply with the minutes of settlement by not accepting any deliveries to any addresses that it had for him. In the hearing room, the respondent counsel attempted to give the applicant an envelope, which the applicant refused to accept.

92Ms. Ready’s notes are not contemporaneous because she did not see the applicant until six days after the mediation-adjudication date. They are based upon the applicant’s self-reporting and do not contain any diagnosis, apart from presenting as anxious. The respondent submits that they should not be given any weight.

93The respondent submits that an adverse inference should be drawn against the applicant for his failure to call Ms. Shen, or the students-at-law, at a witness, particularly because all of his discussions with me, as mediator-adjudicator, were in the presence of Ms. Shen and the students.

94The respondent requested further hearing dates pertaining to its RFOP alleging breach of settlement in the event that the Tribunal found that there was a settlement of the Application. It requests that the Tribunal order the applicant to specify the two remaining allocations and if the applicant does not, the respondent will pay out the amount as it has stated in previous communications with the applicant’s counsel.

The Applicant’s Submissions

February 12, 2015 Mediation-Adjudication was Forced Upon the Applicant

95The applicant submitted that mediation-adjudication on February 12, 2015, was forced upon him. He did not want to participate in it and thought that it was a delay tactic by the respondent. He felt pressured by his counsel, and was subjected to duress by her, to participate and was told that if he did not, it would revoke the agreement that he had with the Centre. The applicant did not testify about this latter point, and raised it only during his submissions.

96During his initial submissions, the applicant, who was self-represented at the time, submitted that he wanted to subpoena Ms. Shen and the two law students who attended on February 12, 2015. He submitted that he did not receive labour law advice, as he had a human rights lawyer, not a labour lawyer; did not get the right kind of legal advice; and was unprepared for mediation. Ms. Shen and the two students could also testify about his medical condition on February 12, 2015. He later asserted solicitor-client privilege over his discussions with Ms. Shen and the students.

The Applicant’s Medical State on February 12, 2015

97The applicant takes the position that there is no settlement because of his medical condition on February 12, 2015. He was not medically fit to continue with the mediation, could not make any clear decisions, and all the parties were aware of his existing medical condition as his medical reports pertaining to anxiety and depression from January 2014, and the medications he was taking for those, he previously been provided to the respondent.

98When the pressure escalated during mediation-adjudication, the applicant submitted, he felt ill to the extent that he could not make a clear decision. He could not determine the two allocations because the amounts were not sufficient to cover his damages. He submitted, at one point, that he told his counsel that he was ill and his wish to go home and she told him that he did not have her permission to leave and the offer would be withdrawn if he left. At another point in his submissions, he stated that his medical condition continued, but he did not inform anyone that his condition had elevated because there was no change in circumstances. He described his medical condition as preventing him from negotiating further, and he was mentally and physically finished.

99The applicant submitted that he wanted to proceed with the hearing, even if the respondent withdrew its offer, and submitted that he told this to me in the presence of his counsel and the students.

100After February 12, 2015, the applicant attempted to see his psychiatrist, but his psychiatrist was on sick leave. He saw Ms. Ready and submitted that her notes provided a contemporaneous account of what transpired in his mind during mediation-adjudication on February 12, 2015. He submitted that they be accepted for the truth of their content, despite Ms. Ready not testifying as a witness, as she has the expertise to assess the applicant’s state of mind.

Factors Supporting that there was No Settlement

101The applicant submitted that there was no settlement and pointed to a number of factors in support of this position.

102He submitted that the offer was left open by the respondent until the morning of February 13, 2015, and that he was told, by me, that the hearing would commence the next morning if he did not accept the respondent’s offer. He was also told that the respondent would bring a motion to dismiss the Application on the basis that he did not present enough evidence during the merits hearing. There would be no need to a further hearing date of February 13, 2015, if there was a settlement. The applicant asked why the respondent would announce that it would be bringing a motion that the applicant had not presented enough evidence to substantiate his case if the respondent believed that there was a settlement.

103The copy of the minutes that he received on February 12, 2015, was not signed by the respondent. If there was a settlement, the minutes would have been signed. It is a trick to receive the settlement documentation, now signed by the respondent, on February 13, 2015.

104The settlement documentation that he received on February 13, 2015, was signed by the respondent except for the changes to the release. He initialled changes to the release, but the respondent did not and therefore there is no settlement.

105There are still blanks in the minutes for the two outstanding allocations, which is further evidence that there is no settlement. The purpose of attending on February 13, 2015, was not to engage in further mediation discussions about the blank numbers, but to continue with the hearing, including the respondent’s motion.

106The respondent, the applicant submitted, wants to outsmart everyone and use unethical tactics, which is why the parties have been unable to find any similar case law.

Withdrawing the Offer

107The applicant submitted that, based upon his testimony, he withdrew his offer. This is consistent with the respondent telling him that its offer was open until the next morning.

Forcing a Settlement Upon Him

108If the settlement is forced upon him, this would be a further violation of the Code, he submitted. It would be null and void and against the law because of his medical condition, which was known to the parties.

Abuse of Process

109The applicant submitted that the respondent was disrespectful towards the applicant during its submissions. The applicant denies the assertion that he enjoys litigating against the respondent over the last five years, and submits that he has suffered as a result of the respondent’s violations against him.

Law and Analysis

Should the Vice-chair be Recused from Deciding Whether or Not There is a Settlement?

110Rule 15A.1 of the Tribunal’s Rules of Procedure (“the Rules”) states:

With the agreement of the parties, the Tribunal member hearing an Application may act as mediator. In such circumstances, the mediator may continue to hear the matter as adjudicator.

111The Tribunal’s Mediation/Adjudication Agreement, which the parties signed, states the following:

The parties to Tribunal File No. 2012-11582-I have agreed to try to resolve some or all issues in the Application by mediation/adjudication.

We understand that participation in mediation/adjudication is voluntary and that the mediation/adjudication will not proceed without all parties’ consent.

We agree to attend and participate in the mediation/adjudication session. We agree that we, and those who attend the mediation with us, will respect the process and be courteous to all participants. We agree that the Applicant and the Respondents, or their representatives, have the authority to make a binding agreement.

We understand that a Tribunal member will conduct the mediation. We agree that if the parties are unable to resolve the application through mediation, the Tribunal member who conducted the mediation will conduct the hearing and adjudicate the Application. Neither party may request that the Tribunal member recuse himself or herself based upon anything that occurred during the mediation. (emphasis added)

The Tribunal member conducting the mediation/adjudication may meet separately with the parties during the mediation portion of the process.

Where the parties do not reach an agreement or the Tribunal member determines the mediation will not be successful, the Application will proceed to hearing. If further mediation is attempted after the matter proceeds to hearing, this agreement will also apply to such discussions.

If the Application proceeds to adjudication, the mediator/adjudicator will not consider statements made or documents provided during the mediation unless they also form part of the evidence in the hearing. The decision will be based entirely on the evidence, submissions and case law presented during the hearing.

We understand and agree that mediation is a confidential process. Parties may not use documents provided by another party solely for the purposes of the mediation in evidence before the Tribunal or in any other civil proceeding. Statements made during the mediation are without prejudice.

We understand that the mediator/adjudicator is not compellable as a witness before the Tribunal or in any other civil proceeding and that the mediator/adjudicator’s notes or records are inadmissible before the Tribunal or any other civil proceeding.

112Mediation and mediation-adjudication are important concepts for the Tribunal as part of its legislative principles of applying alternative adjudicative practices and procedures to facilitate fair, just and expeditious resolutions of the merits of the matters before it. See sections 40 and 41 of the Code. In addition to voluntary mediation, which is offered to parties by the Tribunal before a hearing is scheduled, many Tribunal adjudicators assigned to a scheduled merits hearing offer parties mediation-adjudication in accordance with Rule 15A.1 of the Tribunal’s Rules. This is often offered at the commencement of the hearing, but it can be offered and undertaken at any time during a hearing with the consent of the parties. The parties who participate in mediation-adjudication do so on a voluntary basis with the hearings adjudicator also being the mediator. Many parties who engage in mediation-adjudication resolve their issues through mutually agreeable terms which are reflected in written minutes of settlement. The parties then file a Form 25, which indicates to the Tribunal that the parties have resolved the application, and an administrative letter is issued to the parties by the Tribunal closing its file. As reflected on the Form 25, the Tribunal does not receive a copy of the parties’ minutes of settlement. The Tribunal does not approve settlements.

113On March 25, 2014, the second day of the hearing, the parties signed the Tribunal’s Mediation/Adjudication Agreement and participated in mediation-adjudication which resolved part, but not all, of the Application. Subsequently, a number of days between March 2014 and November 2014 were held for the merits hearing and the Tribunal heard evidence from a number of witnesses.

114Although it was not required, as one of the terms on the Mediation/Adjudication Agreement is that the terms continue to apply if mediation-adjudication continues on other day, the parties signed a second Mediation/Adjudication Agreement on November 14, 2014. They participated in mediation/adjudication on November 14, 2014. They also participated in mediation-adjudication on February 12, 2015, which, of course, is the date upon which the respondent says that there is a settlement. The mediation discussions on March 25, 2014 (the second hearing date), November 14, 2014 and February 12, 2015 were all conducted with me acting as the mediator-adjudicator. Both parties had counsel.

115The Tribunal has held that the Mediation/Adjudication Agreement itself is a clear basis for denying a recusal request where the request arises from events occurring during the mediation. See Ihasz v. Ontario (Revenue), 2013 HRTO 333, Taite v. Carleton Condominium Corporation No. 91, 2011 HRTO 2334, and Kamal v. Peel Condominium Corporation No. 51, 2015 HRTO 53 at para. 8.

116The respondent did not object, or raise any concerns, about me deciding whether or not there was a settlement. Similarly, the applicant, when he was represented by the Centre, self-represented, or represented by Ms. Mohamed, and despite specifically being asked his position on this issue, did not object to or raise any concerns about me deciding whether or not there is a settlement of his Application.

117The parties were well aware that I would be acting as mediator and then adjudicator in the hearing in the event that there was no settlement. In fact, I continued as adjudicator after the first day of hearing, where the parties participated in mediation-adjudication, with me as mediator, and reached a settlement which resolved part of the Application. Subsequent to that, a number of hearing days on the merits of the Application were held, during which the Tribunal heard evidence from a number of witnesses.

118Given that the parties had signed a Mediation/Adjudication Agreement, knew and raised no concerns about my ability to determine whether or not there is a settlement, and had counsel, I will determine whether or not the parties reached a settlement on February 12, 2015.

Is There a Settlement?

Is there an Oral Settlement?

119I accept that a settlement can be based upon an oral agreement. See Hodaie v. RBC Dominion Securities, 2012 ONCA 796 at para. 3.

120In order to have a binding settlement, the essential provisions must have been agreed upon and there must be a mutual intention to create a legally binding relationship. See Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97, 1991 CanLII 2734, at pages 103-4; Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 721 (Gen. Div.), affirmed [1995] O.J. No. 3773 (C.A.), as cited in Ferron v. Avotus Corporation, 2005 CanLII 29655 (ON SC), affirmed 2007 ONCA 73; and Olivieri v. Sherman, 2007 ONCA 491 at para. 41.

The Essential Terms of the Settlement

121The uncontested evidence before the Tribunal is that on February 12, 2015, during mediation-adjudication, the parties negotiated back and forth about an employment letter. The uncontested evidence is that the applicant wanted several language changes to the letter and identified people whom he wanted to sign the letter. The uncontested evidence is that the respondent agreed to make some changes to the language of the letter, although not exactly as the applicant wanted, and agreed to the people whom the applicant wanted to sign the letter.

122The uncontested evidence is that the parties negotiated back and forth on a global monetary amount. Although the applicant testified that he cannot recall the specific amounts that were negotiated back and forth, whereas Ms. Miller can, both the applicant and Ms. Miller testified that the applicant orally offered to settle on the global amount as is set out in the minutes of settlement.

123The uncontested evidence is that the applicant presented a written offer to the respondent which consisted of minutes of settlement, a release attached as Schedule “A”, a letter of employment attached as Schedule “B”, and a Form 25 (“the settlement documentation”). The minutes of settlement and release were executed by the applicant with Ms. Shen’s signature as a witness, as confirmed in the applicant’s evidence, with a date of February 12, 2015 handwritten on the minutes and release. The Form 25, dated February 12, 2015, was signed by the applicant. A witness is not required for the Form 25. The fact that the applicant’s counsel witnessed the written offer means that the respondent should be able to rely upon the settlement documentation extended by the applicant. See, for example, Wang v. Evertz Microsystems Ltd., 2013 HRTO 694 at para. 19.

124The minutes set out a specific global amount, broken down into three allocations. One of the three allocations is specified, with the remaining two left blank with the amounts to be specified.

125The letter, which is appended to the minutes as Schedule “B”, incorporates the changes that were earlier negotiated between the parties, as set out in para. 121 above. The applicant, in his cross-examination, admitted that the language changes and who would sign the letter were agreed upon between the parties before he signed the settlement documentation.

126I accept the evidence of Ms. Miller that the respondent orally agreed with the global amount, and the other terms set out in the minutes, upon receipt of the applicant’s settlement documentation. The applicant testified in cross-examination that he told me, the mediator-adjudicator, in the presence of Ms. Shen and the students-at-law that he did not know if the respondent had accepted his global amount, but he did not call Ms. Shen or the students-at-law to testify on this point. Accordingly, I prefer the evidence of Ms. Miller, who testified that there was an oral agreement based upon the applicant’s executed settlement documentation. The unchallenged evidence is that once the respondent orally agreed with the global amount, there was no further negotiation between the parties on the global amount.

127I find that Ms. Miller was a credible and reliable witness. She recalled with clarity details of the mediation-adjudication discussions from November 2014 and on February 12, 2015. She testified about issues over which she had knowledge, and identified areas where she did not have knowledge. This included why an email that she did not prepare was worded a certain way.

128While the applicant testified that he was not sure that the respondent accepted his global monetary amount, he testified, and submitted, that there was not an agreement, not because there was disagreement on the global monetary amount, because other items continued to be discussed, namely the two allocations that remained blank and further changes to the letter, and because the respondent did not execute the settlement documentation before he left the Tribunal at the end of the day on February 12, 2015.

129In Ferron, above, the court determined that there was a settlement of an action based upon the essential terms of the settlement: a payment from the defendant to the plaintiff, the plaintiff executing a release including a confidentiality clause, and the action being dismissed without costs. The parties did not later agree on how to allocate the payment. On that point, at para. 29, the court held:

As to the allocation issue, from the December 14 and 15, 2004 exchanges of voicemails, the $35,000 amount was to be allocated between legal fees and general damages based on the defamation claim, with specific amounts to be allocated essentially as instructed by the plaintiff…. The plaintiff should not be able to frustrate the settlement by failing to exercise his right to allocate the settlement amount between legal fees and damages. His failure to do so does not support a conclusion that the essential provisions of the settlement had not been agreed upon, or that the contract was too uncertain to be valid.

130Following Ferron, above, I find that there was a settlement of the essential terms of the settlement, when the applicant presented his written offer in the form of the settlement documentation, which the respondent orally accepted. The continued discussions about the two remaining allocations and/or the employment letter do not support a conclusion that there was no settlement. The applicant’s attempt to not quantify the two remaining allocations is, like in Ferron, an attempt to frustrate the settlement by failing to exercise his right to allocate the settlement amount.

131If the employment letter is an essential term of the settlement, I find that there was an agreement on it as well, given that it was appended as a schedule to the minutes, based upon language that the applicant admitted was changed prior to him signing the minutes, and based upon a term in the minutes which sets out the two individuals who would be signing the letter. Any further changes that the applicant wanted do not negate the fact that there was already an agreement about the employment letter.

132Further, I find that there was an agreement about the release and the language of the release. The unchallenged evidence is that the applicant executed the release as part of the settlement documentation. When the respondent received it, it stated that a change was required. One word was changed. The applicant accepted this change and initialled the change. The respondent then orally accepted the settlement documentation. Later when Ms. Miller executed the settlement documentation, she initialled the change on the release, although she was not required to execute the release itself.

133Even if the wording of the release was to be later agreed upon, this does not affect the fact that there was a binding agreement. See Di Gennaro v. BMO Nesbitt Burns Inc., 2013 ONSC 37 at para. 21.

Intention to Form a Settlement

134I also find that the applicant intended to form a settlement when he offered to settle his Application on the terms set out in the settlement documentation. This is evidenced by the language contained in the minutes and the Form 25.

135The preamble to the minutes states, “… the parties wish to resolve all differences between them”.

136Para. 1 of the minutes states:

The Applicant hereby undertakes to completely and finally withdraw and discontinue any and all claims or grievances between the Human Rights Tribunal of Ontario, and any other administrative bodies, tribunals, courts of other entities with respect to issues relating to the Applicant’s employment. The Applicant hereby agrees to dispose of the Application and immediately execute and file a Form 25 with the Human Rights Tribunal of Ontario (the “Tribunal”).

137Paras. 1 and 4 of the Form 25 state:

The parties confirm that they have resolved this Application based on a written settlement that they have signed.

In view of the above, the parties signing before understand that the HRTO [the Tribunal] will finally dispose of this Application and close its file.

138The language from the minutes and the Form 25 makes it clear that the applicant intended to dispose of and settle his Application.

139The settlement documentation was prepared by the applicant, through his counsel, executed by the applicant, and witnessed by his counsel prior to giving it to the respondent. Paragraph 12 of the minutes confirms that the applicant had the opportunity for independent legal advice with respect to its terms, and that he signed the minutes and release of his own free will and without duress or coercion. Although the applicant testified that he did not review the settlement documentation before signing them, he agreed during cross-examination that he participated in mediation-adjudication for several hours before executing the settlement documentation, received legal advice before signing the settlement documentation, and that Ms. Shen witnessed his signature.

140The Tribunal has held that if an applicant choses to sign a release, or in this case settlement documentation, without ensuring that he or she understands it, is responsible for that choice. I find that this is the case here too. As stated in Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 at para. 69:

A party to a legal agreement cannot enter into it without taking the time and effort to understand it and then rely on her own actions as the basis upon which to resile from the agreement.

141For these reasons, I conclude that there was a written offer to settle, through executed settlement documentation, which was orally accepted by the respondent. This then amounted to a settlement of the Application.

Is there a Written Settlement?

142In addition to finding that there was an oral settlement, I also find that there is a written settlement when Ms. Miller executed the settlement documentation and which was sent by email to Ms. Shen from Mr. Zabrovsky in the early hours of February 13, 2015. In making this finding, I have concluded that the applicant has not proven that he withdrew his written offer prior to Ms. Miller signing the settlement documentation or prior to Mr. Zabrovsky’s email.

Did the Applicant Withdraw his Offer?

143The applicant asserts that during subsequent discussions about the two allocations, he realized that the global monetary amount was not sufficient to cover his losses. He testified that at that point he orally withdrew his offer to settle. He points out that at the time of leaving the Tribunal on February 12, 2015, the copy of the minutes that he received at the end of the day did not contain the signature of the respondent.

144Ms. Miller testified that the applicant’s written offer to settle, to which the respondent orally agreed, was never withdrawn by the applicant. She testified at the end of the day on February 12, 2015, and before she left the Tribunal, she signed the settlement documentation, including initialling the changes to the release, which were emailed by Mr. Zabrovsky to Ms. Shen.

145Settlement documentation, consisting of minutes of settlement executed by both parties and their respective witnesses; an executed release, with changes initialled by both parties; and an executed Form 25 were filed as an exhibit with the Tribunal. Copies of emails sent by Mr. Zabrovsky in the early hours of February 13, 2015 were also entered as exhibits. The first was to Ms. Shen, enclosing copies of the executed minutes and release. The second is an email to the Tribunal, on which Ms. Shen is copied, wherein the respondent confirms its position that the matter is settled and that a copy of the Form 25 would be handed to the Tribunal in person on the previously scheduled hearing date.

146Notwithstanding my conclusion that the respondent orally accepted the applicant’s written offer to settle, I find that the applicant has not been able to prove that his offer was withdrawn. In the face of settlement documentation executed by both parties, I find that it is the applicant’s onus to prove that his offer was withdrawn.

147Without making any findings about credibility on this point, I find that the applicant has not been able to prove that his offer was withdrawn. He testified that he orally withdrew his offer and Ms. Miller testified that he did not.

148The applicant confirmed during his cross-examination that all of his discussions with me, as mediator-adjudicator, were in the presence of Ms. Shen and the two students-at-law who attended with Ms. Shen. Therefore, the applicant could have called Ms. Shen and/or the students-at-law as a witness to testify that he withdrew his offer. He chose not to. As the alleged withdrawal was said in my presence, the applicant could not claim solicitor-client privilege over that part of the discussion.

149The applicant was represented by Ms. Mohammed who, as a lawyer, would know, or is deemed to know, about subpoenaing witnesses. In fact, Rule A9.2 of the Tribunal’s Rules of Procedure state, in part, “…Representatives should be familiar with tribunal rules and procedures, communicate the tribunal’s expectations to their client, and provide timely responses to the other parties and the tribunal.”

150While the applicant was self-represented for a period of time, he could have made arrangements himself to subpoena Ms. Shen or the students-at-law. I do not accept his claim that he did not know how to subpoena Ms. Shen and find that he was aware about the process for subpoenaing witnesses for the Tribunal. The CAD, part of which is reproduced in para. 18 above, provided direction about how to subpoena legal representatives from the Centre. I also note that in the first Decision, at para. 7, the Tribunal addressed the applicant’s concern that his witnesses had been intimidated by the respondent to not attend the hearing, particularly one witness. The Tribunal did not find that the respondent intimidated the witness and, in para. 7, stated that the Tribunal provided the parties with its Guide to Preparing for Hearings, gave the applicant Tribunal summonses, and explained that there would be consequences to a witness who failed to comply with a properly-issued summons.

151In determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed fact may allow the Tribunal to draw an adverse inference – that the party did not call a particular witness because the witness would not have been supportive to that party’s case. See Shah v. George Brown College, 2009 HRTO 920 at para. 14.

152Given that the applicant’s evidence that the withdrawal was told to me in the presence of Ms. Shen and the students-at-law, and the applicant’s failure to call any of them as a witness, I draw an adverse inference against him that their evidence would not have been supportive to his position that he withdrew his offer.

Coercion and Duress

153I agree with the respondent’s submission that the applicant appears to have abandoned his position that he was subjected to coercion or duress in executing the settlement documentation. Notwithstanding this, I have also determined that he has not proven that he was subjected to coercion or duress such that the settlement should be set aside.

154The legal threshold in establishing coercion or duress is high. The Ontario Court of Appeal described the elements of duress as follows in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 at para. 9:

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.

155The Tribunal has recognized that parties do feel pressure, particularly financial and economic pressure, during litigation and during settlement discussions. See, for example, King v. Ontario (Health and Long-Term Care), 2011 HRTO 2228 at para. 23; Kassab v. UPS SCS Ins., 2013 HRTO 1431 at para. 34; and Sinnett v. Orlick Industries, 2009 HRTO 916 at para. 24. Mediation is, in fact, an exercise in encouraging parties to achieve compromise and reach terms of settlement and by its very nature can be a stressful or difficult process. However, not all pressure applied in these circumstances is illegitimate or constitutes duress. The legal threshold, as set out in Taber, above, is a high one.

156The applicant testified that he participated in mediation-adjudication in March and November 2014. He testified that he did not want to participate in mediation-adjudication on February 12, 2015, and that the decision to participate was made by Ms. Shen and the respondent’s counsel. Notwithstanding that he did not want to participate, he testified that he did participate the entire day of February 12, 2015, until he left the Tribunal sometime after 5:00 p.m.

157The applicant has not presented any evidence that the pressure that he experienced to participate in mediation-adjudication, or during it, was illegitimate, or that it was applied to such a degree as to constitute a coercion of the will.

Attending on February 13, 2015 and the Respondent’s Alternative Legal Positions

158The fact that the respondent may have set out legal positions as alternatives, or additions, to asserting that there was a settlement, as well as the fact that the parties attended the Tribunal again on February 13, 2015, does not mean that there was no settlement. As set out above, I have found that there was an oral acceptance by the respondent of the applicant’s written settlement offer, and a subsequent written settlement. The uncontested evidence of both the applicant and Ms. Miller is that the discussions about the remaining allocations, and the applicant’s request to obtain accounting advice, broke down later in the day after spending the day participating in mediation-adjudication, with both the applicant and Ms. Miller leaving the Tribunal’s facilities after 5:00 p.m. The February 13, 2015 hearing date had been scheduled by the Tribunal in October 2014 and it is not surprising, in the circumstances of this case, that the parties were returning to address any outstanding issues.

159It is not contested that the applicant requested accounting advice in the afternoon of February 12, 2015, while the parties were discussing the remaining two allocations. Whether or not he obtained accounting advice before attending the hearing on February 13, 2015 does not detract from the fact that there was already a settlement.

Should the Settlement be Set Aside because of the Applicant’s Medical Condition?

160The Tribunal has held that an applicant must meet a high threshold to establish that he or she did not appreciate the significance of signing a release by reason of mental illness or disability. See Kerkezian v. Donway Place Retirement Home, 2012 HRTO 1581 at para. 26.

161As set out above, the applicant testified that on February 12, 2015, he did not come prepared to participate in mediation-adjudication. During the mediation-adjudication, he began to experience anxiety and stress. He signed the settlement documentation because he wanted the proceeding to be over and he wanted to go home. He took, or had taken (his evidence is not clear if he took this medication before arriving at the Tribunal on February 12, 2015 or during the day), Adavan, which is anti-anxiety mediation prescribed by his family physician. He testified that when the two remaining allocations were being discussed, he could not understand words, but did not tell anyone that he was having difficulty understanding words. He asserts that the respondent knew about his medical condition. Essentially, he submits that because of his medical condition, he was incapacitated and did not understand what he was signing.

162In addition to his oral testimony, the applicant introduced notes from Ms. Ready with entries dated February 18, 19, and March 13, 2015. As set out above, I issued an oral ruling admitting these notes, but stated that little, if any, weight would be attributed to them because the applicant was not calling Ms. Ready as a witness.

163I do not find that the applicant has met the high threshold that is required to establish that he did not have capacity to enter into a settlement.

164I accept the applicant’s submission that financial matters require a higher level of understanding when addressing capacity issues. See Calvert (Litigation Guardian of) v. Calvert, 1997 CanLII 12096 (ON SC). The applicant’s own evidence, by itself, is not sufficient to establish on balance that his mental state was such that he was incapable of making any decisions and not understanding what was being discussed during the mediation. In fact, from his own testimony his anxiety and stress escalated after he signed the settlement documentation and extended his written offer to the respondent, after the terms were accepted by the respondent, and while the parties were discussing the remaining two allocations. It was at this point that he realized that the global amount was not going to cover his losses. This caused him distress and he changed his mind about the global monetary amount that he had offered, and which had been accepted by the respondent.

165The applicant did not call any witnesses to attest to his medical state on February 12, 2015. There were specific directions to the applicant in the CAD, which was issued after the applicant submitted that his medical condition prevented him from further participating in the mediation-adjudication, pertaining to producing medical documentation, if he intended to rely upon medical documentation during the hearing about whether or not there was a settlement. Ms. Ready’s March 13, 2015 notes actually indicate that she received a telephone call from the applicant on March 13, 2015, requesting his medical chart for his sessions after “this court date”, and that Ms. Ready gave him information about how he could obtain her records.

166The applicant could have called Ms. Shen and/or the students-at-law to testify about any observations made by them of the applicant and how he comported himself during the process. He did not. He could have called one of his treating medical practitioners, including his family physician, whom he testified prescribed the Adavan; the new psychotherapist, Dr. Joyce, who is mentioned in Ms. Ready’s March 13, 2015 notes, and with whom the applicant had already met for an initial interview; or Ms. Ready herself. He did not.

167While the applicant’s psychiatrist may not have been at work and on a sick leave, there is no evidence before me that the applicant’s state of mind was so distressed that he attempted to obtain imminent medical assistance. He testified that he took the first appointment that Ms. Ready offered him, six days after the mediation-adjudication was held.

168I place no weight on Ms. Ready’s notes to establish that the applicant did not have the mental capacity to enter into a settlement on February 12, 2015, because the applicant did not call her as a witness, and therefore did not make her available for cross-examination.

169I do not accept Ms. Ready’s notes for their truth, or for a contemporaneous account of what happened on February 12, 2015, as the applicant urged me to do. Large portions of the notes were redacted by the applicant. The applicant described how he felt during “the court process” and during “the court meeting”, but there is no independent verification of those descriptions if they were about the Tribunal’s process. The description of his feelings differ from how he testified before the Tribunal. Most importantly, the unredacted notes do not refer at all to February 12 or 13, 2015, thus making impossible to know whether the self-reported symptoms described by the applicant pertained to the February 12, 2015 mediation-adjudication before the Tribunal.

170It is clear that the applicant reported to Ms. Ready that he did not agree with the amount of the settlement. Her February 18, 2015 notes state, “[more than 10 lines of notes redacted] that the proposed amount in the document was unacceptable to him and inadequate to cover the expenses of his losses to date”. Ms. Ready’s February 19, 2015 notes state, “…Client continues to feel extreme anxiety with regards to potential settlement which he believes to be insufficient”.

171As for the applicant’s assertion that he had a pre-existing condition of which the respondent was aware, in support of his position, he attempted to rely upon documentation that was two years old and which was produced for the purposes of the merits hearing, but not entered as an exhibit. The respondent pointed out that the documentation indicated that the applicant declined to accept medication for this condition. I did not allow this documentation to be entered.

172The applicant’s own evidence indicates that he was capable of understanding. The global amount was offered by the applicant, the changes to Schedule “B” were initiated by him, and he signed the settlement papers, he testified because “he wanted to get it all over with and go home”. It was after all this took place that he became incapable, he testified, of understanding any words. It was while discussions were taking place about the two types of allocations that the applicant realized that the global amount was not sufficient for his needs and he testified that he then withdrew his offer. While in keeping with the confidentiality term of the minutes, I agree with the respondent, based upon my extensive experience as a Vice-chair with the Tribunal, conducting mediations, hearings and mediation-adjudications, that the global amount is not unconscionable.

173In light of the above, I do not find that the applicant has presented evidence to substantiate that his medical condition incapacitated him on February 12, 2015 and therefore there is no basis to set aside the settlement because of his medical condition. See Mavec v. Sanofi Pasteur Ltd., 2010 HRTO 804 at paras. 21 and 24.

Would it be an Abuse of Process to Continue?

174Section 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.

175The Tribunal has held that filing a human rights application after signing a full and final release in respect of the same subject matter of the application may constitute an abuse of the Tribunal’s process and where that is the case, such applications should be dismissed. See Perricone, above.

176In the situation before me, the parties had many days of hearings on the merits of the Application and voluntarily participated in mediation-adjudication using the Tribunal’s process. I have determined that the applicant’s written offer to settle was orally accepted by the respondent such that there was a settlement. In addition, I have determined that there was a written settlement when the respondent signed the settlement documentation that had already been executed by the applicant. I have determined that the applicant did not withdraw his offer and that his medical condition did not incapacitate him to the point of setting aside the settlement.

177Section 45.9(1) of the Code provides, “If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties”. In light of the signed settlement documentation, including a release, a term in the minutes to discontinue the Application before the Tribunal, and the Form 25, the settlement is binding on the parties and it would undermine the integrity of the Tribunal’s mediation-adjudication process and be an abuse to allow the Application to proceed. Accordingly, the Application is dismissed.

178A party who alleges that another party has breached a term of the settlement can file a breach of settlement application in accordance with section 45.9 of the Code.

Order

179In light of the findings above, the Tribunal orders the following:

1. There is a settlement based upon the executed settlement documentation;

2. The essential terms of the settlement included an agreement on the global monetary amount.

3. One of the allocations was agreed upon;

4. The two remaining allocations were not essential terms;

5. Within 30 days, the applicant shall specify the two remaining allocations to the respondent; and

6. As a result of the Form 25 filed with the Tribunal, the Tribunal shall close its file.