Prakash Murugesan v. CIBC Mortgages Inc. et al., 2016 HRTO 678

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Prakash Murugesan Applicant

-and-

CIBC Mortgages Inc., Gerald McCaughey, Brent Belzberg, Gary Colter, Dominic D'Alessandro, Patrick Daniel, Luc Desjardins, Gordon Giffin, Linda Hasenfratz, Kevin Kelly, Nicholas Le Pan, John Manley, Jane Peveret, Leslie Rahl, Charles Sirois, Katharine Stevenson, Ronald Tysoe, Jacqueline Moss and John Silverthorn Respondents

-and-

Great West Life Proposed Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: May 18, 2016 Citation: 2016 HRTO 678 Indexed as: Murugesan v. CIBC Mortgages Inc.

APPEARANCES

Prakash Murugesan, Applicant Self-represented

CIBC Mortgages Inc., Respondent John Field and Lauri Reesor, Counsel

Great West Life, Proposed Respondent Susan McCorquodale, Counsel

1In his Application, the applicant alleged that the respondents discriminated against him because of disability and reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). He made ten allegations of discrimination in his Application. He subsequently sought to amend his Application to add an eleventh allegation of discrimination. He also sought to add Great West Life as a respondent to the Application.

2By Case Assessment Direction (“CAD”), I directed that the Tribunal schedule a preliminary hearing to address whether the Application should be dismissed, in whole or in part, for one or more of the following reasons:

1. on the basis that the applicant has signed two full and final releases with respect to the some of the same matters raised in the Application;
2. on the basis of delay and/or
3. on the basis that portions of the Application stand no reasonable prospect of success.

3I also directed the parties to provide submissions on the two following issues in the preliminary hearing:

4. whether the Tribunal should grant the respondents’ request to remove the personal respondents listed in the Application.
5. whether Great West Life should be added as a respondent.

4I have reviewed in detail the very comprehensive and clear written submissions filed by the applicant, respondents and proposed respondent. Below, I only review the facts and submissions that are relevant to explaining and justifying my conclusions.

5As explained in detail below, I find that the Application must be dismissed for several reasons. First, most of the Application must be dismissed on the basis that proceeding with it would amount to an abuse of process due to the full and final releases included in the settlements between the applicant and the corporate respondent, in particular the 2008 settlement. Second, all allegations that are not covered by the settlements must be dismissed as untimely. Third, the allegations that are not covered by the settlements have no reasonable prospect of success under the Code. Finally, I find that it is not appropriate to add Great West Life as a respondent because the allegations against Great West Life stand no reasonable prospect of success under the Code.

Applicant’s Disability-Related Accommodations in this proceeding

6I granted the applicant’s request for extensive disability-related accommodations for the preliminary hearing. In order to accommodate the disability-related needs asserted by the applicant, the applicant, respondents and proposed respondent filed written submissions for the preliminary hearing. These submissions were supplemented by a one hour teleconference in which the parties had the opportunity to provide oral submissions in answer to my questions regarding their written submissions.

7In order to further accommodate the applicant’s disabilities, I provided the applicant with the opportunity to file any necessary clarifying submissions following the teleconference portion of the preliminary hearing. I also provided the respondents and the proposed respondent with the right to respond to any clarifying submissions filed by the applicant. I made clear that, in their post teleconference submissions, no party would be permitted to raise new issues or reiterate any submissions they already made in writing or orally. The post-teleconference submissions were simply an opportunity for the applicant to clarify any oral submissions he made at the teleconference if necessary.

8In addition to the above accommodations relating to the preliminary hearing, I had granted other accommodations to the applicant prior to the preliminary hearing. By Interim Decision, 2015 HRTO 426, I granted the applicant’s request to defer consideration of this Application for a period of six months. I granted this deferral request on the basis of a supporting letter from his treating physician stating that he was not medically able to proceed with the Application for six months.

9By Interim Decision, 2015 HRTO 1343, I granted the applicant’s request to re-activate his deferred Application. In that decision I denied the applicant’s request to amend his Application to add a twelfth allegation of discrimination. The applicant claimed that I should permit him to amend his Application due to medical documentation indicating that he has trouble gaining insight and processing information.

10I noted in my Interim Decision that the applicant’s doctor claimed that it may take the applicant “years” to understand information. I stated that, if that was in fact the case, “it may well be that the applicant is incapable of carrying out the essential steps that are required to participate in a proceeding before the Tribunal.” (para. 9) In his submissions for the preliminary hearing, the applicant took issue with that statement, claiming that it was cruel, biased and hurtful.

11I note that my statement relating to the ability to fulfill the essential steps required to participate in a Tribunal proceeding mirror the language found in s. 17 of the Code. Section 17 provides that it is not discrimination on the basis of disability if a person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of a right under the Code with accommodation. These principles may apply by analogy to the litigation process if a party is incapable of fulfilling the essential requirements relating to participation in a proceeding before the Tribunal with reasonable accommodations.

12I granted the applicant an extension to file his post-teleconference clarifying submissions. The applicant filed some clarifying submissions and sought a further extension to file yet more submissions. I denied his request on the basis that I had made clear that no further extension requests would be granted. As well, I was satisfied that I had given the applicant ample opportunity to make and clarify his submissions on the issues in dispute. After I denied the applicant’s request for an extension, he sent an audio recording to the Tribunal in which his psychiatrist recommended that the Tribunal grant the applicant a six month extension to file more post-teleconference clarifying submissions.

13I do not consider it appropriate to grant this request for a further extension. As noted above, I granted the applicant an opportunity to file post-teleconference submissions only to clarify his oral answers to my questions in the teleconference. In large measure, the submissions that the applicant filed after the teleconference portion of the preliminary hearing simply reiterated many of the arguments he made in his written submissions and in answer to my questions in the teleconference. Although the applicant claims to not have had a fair opportunity to put forward his case, I do not agree. He has been provided extensive accommodations to permit him to make very extensive submissions in this case. I am not persuaded that any further extension should be granted for the applicant to file submissions which are likely to simply repeat and reiterate the points he has already made.

14Notwithstanding the difficulties claimed by the applicant and his doctor, the applicant filed very comprehensive and detailed written submissions that were supplemented with very clear and comprehensible oral submissions during the teleconference. The applicant’s submissions were much more detailed, clear and comprehensive than most self-represented parties. As such, I was satisfied that he was able to fully articulate and put forward his position on the preliminary issues raised in my CAD. The fact that I do not accept the applicant’s position on the various issues addressed in the preliminary hearing does not relate to his inability to clearly advance his position. It relates instead to my disagreement with his clearly articulated position.

Background to Application

15The applicant became employed by the corporate respondent in February 2002. In or around September 2004, he began a Short Term Disability leave. He successfully applied to the proposed respondent, Great West Life, for Long Term Disability (“LTD”) benefits in March 2005. To date, the applicant remains employed by the corporate respondent and also remains on LTD.

16The applicant and the corporate respondent entered into two settlements relating to various complaints raised by the applicant in relation to his LTD benefits and other employment-related issues. Each settlement included a full and final release. The first settlement was entered into in March 2006 and the second was entered into in April 2008.

17The applicant filed a complaint with the Canadian Human Rights Commission (“CHRC”) on November 28, 2011 in which he alleged discrimination by the respondent. The CHRC dismissed his complaint in August 2012 on the basis that his complaint fell under provincial jurisdiction. On several occasions around this time, the applicant complained about the alleged discrimination contained in the Application to the members of the respondent’s Board of Directors and/or its legal counsel at least up to July 2013. He filed his Application with this Tribunal on November 6, 2013. He filed a Request for Order During Proceedings to add Great West Life as a respondent on May 25, 2014.

Allegations in application

18The applicant alleged that the respondents discriminated against him as follows:

a. by refusing to provide benefits to the applicant under its Occupational Injury Policy, which provides more generous benefits than its LTD policy. It appears that the Occupational Injury Policy mirrors the benefits provided under the Workplace Safety and Insurance Act 1997, S.O. 1997, c. 16, Sch. A, as amended. It appears that the policy was put in place due to federal legislation requiring such policies when some of an employer’s employees fall under federal jurisdiction.

The thrust of the applicant’s claim regarding his LTD benefits is an allegation that his mental illness was caused by his work and therefore that he should be eligible for benefits under the respondent’s Occupational Injury Policy. He may also be seeking to allege that it is discriminatory for the corporate respondent to pay greater benefits to employees with work-related disabilities than those with non-work-related disabilities;

b. by not permitting the applicant to increase contributions to the corporate respondent’s Employee Share Purchase Plan while on LTD;

c. by denying the applicant vacation pay while he was on LTD;

d. by denying the applicant access to a telephone information line relating to the disability benefits offered by the corporate respondent;

e. by failing to move the applicant to a higher job level while he was on LTD;

f. by not permitting the applicant to change his status from non-contributing member to contributing member of the corporate respondent’s pension plan while on LTD;

g. by denying the applicant access to his human rights file;

h. when the corporate respondent’s legal counsel sent threatening and retaliatory e-mails to the applicant;

i. when the Executive Vice President (“EVP”) of Human Resources misled the police and courts which then led to the applicant’s arrest;

j. because the corporate respondent’s disability calculations for base plus commission employees is an arbitrary process that differentiates between disabled employees; and

k. by including a term in the Minutes of Settlement entered into in 2008 prohibiting the applicant from contacting members of the corporate respondent’s executive, officer, directors and other officials of the corporate respondent. The Minutes of Settlement required that all contact or correspondence between the applicant and the corporate respondent to be directed a Senior Vice President of the corporate respondent.

whether proceeding with the application would amount to an abuse of process

Relevant Law

19The Tribunal’s approach to the application of the doctrine of abuse of process in situations where an applicant has signed a previous full and final release is well established. See, for example, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 (“Perricone”), Nolan v. Royal Ottawa Health Care Group, 2014 HRTO 1604 and the numerous cases cited in those decisions.

20The Tribunal has the power to make orders or give directions in proceedings before it as it considers proper to prevent an abuse of its processes: s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, as amended, and Rule A 8.1 of the Social Justice Tribunals of Ontario Common Rules of Procedure.

21The Code does not explicitly bar applications where a release has been signed by an applicant. However, the filing a human rights application after signing a full and final release with respect to the subject-matter of the application may constitute an abuse of the Tribunal’s process. Where that is the case, the Tribunal will dismiss the application.

22The reason why the Tribunal may determine that it is an abuse of process to permit an applicant to proceed with an application where he or she has signed a full and final release relates not only to the principle of finality but also to the sound enforcement of the Code’s protections and fairness to all parties. When two parties agree to settle a legal dispute, the principle of finality demands that the settlement be given effect. The principle of finality requires that parties not be permitted to litigate settled matters, unless there are compelling reasons to disregard a prior settlement and release.

23Most litigation ends in settlements and almost all settlements include a provision by which a claimant fully releases the respondent from future claims relating to the subject matter of the settlement. To be effective, settlements must be final. Otherwise, parties would have no incentive to enter into settlements to end litigation. If the Tribunal were to routinely permit applicants to litigate discrimination claims despite the existence of a full and final release, respondents would have no incentive to settle Code-related disputes. As a result, many more cases would proceed to litigation, thus imposing a heavy burden on applicants, respondents, and the publicly funded human rights system.

24It is for these reasons that the Tribunal has held that it would be an abuse of process to proceed with an application when its subject matter is covered by a full and final release, unless there are compelling reasons to disregard the release.

25In Pritchard v. Ontario (1999), 1999 CanLII 15058 (ON SCDC), 45 O.R. (3d) 97 (Div. Ct.) at para. 17, the Divisional Court set out some of the relevant factors to consider under the pre-2008 version of the Code when deciding whether a human rights claim is barred by the signing of a full and final release:

Undoubtedly, in some cases, an employee who has accepted a sum of money in exchange for a release of claims against a former employer, including human right claims, would be acting in bad faith in subsequently turning around and filing a human rights complaint. However, in other cases, the facts may show that the employee misunderstood the significance of the release, or received little or no consideration for it beyond statutory entitlements under employment standards legislation, or was in such serious financial need that she or he felt there was no choice but to accept the package offered.

26In several cases, the Tribunal has found that the Pritchard factors can be useful in determining whether it would be an abuse of process to proceed with a hearing on the merits. In addition to the factors set out in the paragraph above from Pritchard, it is well accepted that a release may also be set aside if there is evidence of psychological or emotional pressure amounting to duress or if there is evidence of fraudulent misrepresentation.

27In assessing claims of economic duress, the Tribunal has relied on the description of economic duress provided by the Court of Appeal for Ontario in Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 at paras. 8-9:

There is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis.

However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to “a coercion of the will” of the party relying on the concept.

28In Dai v Zuo, 2015 ONSC 3008, the Ontario Superior Court held that the following considerations apply in determining whether pressure amounts to a “coercion of the will”: (1) whether the party relying on this defence protested; (2) whether there was an alternative course open to him or her; (3) whether he or she were independently advised; (4) whether he or she took steps to avoid the agreement after entering into it.

29In 1018429 Ontario Inc. v. Fea Investments Ltd., 1999 CanLII 1741 (ONCA) at para 51, the Ontario Court of Appeal adopted the following description of fraudulent misrepresentation set out by Professor Fridman in The Law of Contract, 3rd ed. (1994) at p. 294:

A fraudulent misrepresentation is one which is made with knowledge that it is untrue and with the intent to deceive. It may even constitute a term of the contract. Whether it does or not is immaterial, since fraud gives rise to effects in the law of contract and the law of tort. A contract resulting from a fraudulent misrepresentation may be avoided by the victim of the fraud. In such instances the apparent consent by the innocent party to the contract and its terms, is not a real consent. Whether or not the effect of such fraud is to induce a mistake (which might render the contract void), the consent of the innocent party may be revoked at his option.

30Having set out the applicable legal principles, I now turn to their application to this case.

Findings

31In his written submissions, the applicant urged me not to take what he characterized as a “cookie cutter” approach. I agree with the applicant that all cases must be decided on their particular facts. However, I disagree with the suggestion that the Tribunal’s approach to the issue of abuse of process has taken the form of a “cookie cutter” approach. Instead, I would characterize it as a consistent approach that promotes the principles of finality, the sound enforcement of the Code’s protections and fairness to all parties.

32In this case, the applicant has entered into, not one, but two settlements with the corporate respondent, each of which contained a full and final release.

33In the release contained in the 2006 settlement, the applicant agreed to release and finally discharge the respondents from any claims

present or future, known or unknown, in any way relating to the Employee’s employment by the Employer up to and including the date this release is executed, including any loss of benefits and benefit coverage including short term or long term disability benefits or any claim for costs, interests, loss or injury.

34In that same release, the applicant agreed not to make any claim against the respondents, including any claim under federal or provincial human rights legislation.

35The 2008 settlement also contained release clauses. The release clause in para. 5 of the 2008 settlement stated in its relevant part as follows:

The Employee acknowledges that the payment of the sum in paragraphs (sic) 1 is inclusive of and exhaustive of all possible entitlements to pay, including all wages, income recovery payments, vacation pay, overtime, statutory holiday pay, and all rights similar or akin to these under the Employment Standards Act, any other statute or at common law or any other entitlements in respect of the Employee’s employment up to the date of his execution of these Minutes whether pursuant to the Employment Standards Act, the Ontario Human Rights Code, the Canadian Human Rights Act, the Pay Equity Act or otherwise.

36In that same paragraph, the applicant agreed that the settlement was a full and final settlement of

any claim he may have considered or may in the future consider under this or any other legislation alleging failure to pay, discriminatory conduct, reprisal or bad faith dealings on the part of CIBC Mortgages Inc. together with their parents, subsidiaries and affiliates and all of their respective officers, directors, partners, employees, servants, agents, service providers, insurance carriers (except as described herein), trustees and all of their respective successors and assigns (the “Employer”) and the Employee agrees that any and all such allegations which predate the date on which he executed these Minutes are withdrawn, resolved and/or inadmissible in any proceeding.

37Para. 6 of the 2008 settlement stated that, notwithstanding the full and final release in the settlement, the applicant, as an employee of the corporate respondent who is absent from work due to a disability, continued to have certain rights including the following right set out in para. 6(a):

The right to access the existing long term disability benefits subject to the terms, conditions and limitations of the Plan and the right to dispute, with the carrier of the Plan and not with the Employer, any decision from the date of [the applicant’s] execution of these Minutes forward as to his entitlement, eligibility and benefit level.

38The applicant claimed that the Tribunal should permit him to proceed with this Application against the respondents despite the two sets of releases reviewed above for a number of reasons. In particular, the applicant claimed he should not be bound by the releases for the following reasons:

a. due to para. 6(a) of the 2008 settlement, quoted above;

b. because the applicant did not understand the settlements and allegedly lacked the capacity to understand the settlements;

c. due to economic, psychological and/or emotional pressure amounting to duress;

d. because the settlement included a requirement that the applicant not communicate with any executives, officers, directors or other officials of the corporate respondent;

e. because the respondents did not pay him any consideration specifically for releasing them from future human rights claims;

f. because he was unaware of the respondent’s Occupational Injury Policy at the time the settlements were entered into;

g. because a representative of the corporate respondent told the applicant to file a complaint with the Ontario Labour Relations Board; and

h. because the respondents failed to set up a trust account for the settlement funds.

39I do not find that any of the above factors are reasons to disregard the two releases agreed to by the applicant and permit this Application to proceed.

Para. 6(a) of the 2008 settlement

40I do not agree with the applicant’s submission that para. 6(a) of the 2008 settlement permits him to proceed against the respondents with respect to his claims relating to LTD benefits. The provision clearly and unambiguously states that any rights preserved under that paragraph are against “the carrier of the Plan” and not the respondents. Therefore there is nothing in para. 6 of the 2008 settlement that would permit the applicant to continue his claims relating to LTD benefits against the respondents. There is also nothing in para. 6(a) of the 2008 settlement that would permit the applicant to continue any part of this Application against the respondents.

Failure to understand and/or lack of capacity to understand the settlements

41The applicant has failed to persuade me that the release should not be given effect due to his alleged inability to understand the settlements. Although the applicant has provided medical information stating that he has a disability that impedes his ability to gain insight and process information, the applicant’s psychiatrist specifically signed a Certificate of Competence at the time the applicant signed the 2008 settlement. In that certificate, the applicant’s psychiatrist stated that he spoke with the applicant about the settlement which the applicant also intended to review with legal counsel.

42The certificate states that the corporate respondent wished to have confirmation of the applicant’s capacity to enter into the contract and understand the nature, consequences and effect of his decision. The applicant’s psychiatrist specifically confirmed as follows:

I confirm that Mr. Murugesan is competent to understand and make decisions in respect of the matters contained in the agreement and is able to understand the nature, consequences and effect of any decision he may make to be bound by this agreement.

I have reviewed Mr. Murugesan’s diagnosis and confirm that my assessment above as to his ability to understand the nature and consequences of his actions is not inconsistent with the diagnosis.

43Thus, the Certificate of Competence could not be clearer that, at the relevant time, the applicant had the capacity to understand the decision he was considering and that he had the capacity to understand the nature, consequences and effects of that decision. The applicant has sought to rely upon letters from his doctor written prior to, and after, the signing of the settlement claiming that he has difficulty gaining insight and processing information. He claimed that his doctor retroactively changed his assessment of his capacity to enter into the settlement.

44I find that the best evidence regarding the applicant’s legal capacity to enter into and understand the settlement is the Certificate of Competence. This Certificate is clear and unambiguous. It was signed by the applicant’s psychiatrist within days of the date he signed the settlement. For this reason, the Certificate is the best evidence of the applicant’s mental capacity to understand the consequences of the decision he was making in accepting the 2008 settlement.

45Not only did the applicant’s psychiatrist certify that he was competent to understand the settlement, but the applicant had the benefit of independent legal advice to assist him in understanding the settlement from a legal perspective. In the Certificate of Independent Legal Advice attached as a schedule to the settlement, the applicant’s counsel confirmed that she provided the applicant with legal advice relating to his rights and responsibilities under the 2008 settlement.

46This Certificate is also clear and unambiguous. The applicant’s counsel confirmed as follows in the certificate:

Following our review of the Minutes, Mr. Murugesan expressly stated to me that he understood the nature, consequences and effect of the Minutes; he understood the obligations it imposed upon him and he understood the consideration that was being given by him and provided to him.

Mr. Murugesan then stated his intent to sign the Minutes in my presence and I executed this Schedule.

47In light of these two certificates, I cannot accept the applicant’s claim that he did not understand, or lacked the capacity to understand, the 2008 settlement.

Duress

48I cannot accept the applicant’s submission that the release should not be given effect because the applicant was experiencing pressure amounting to duress. The type of argument being made by the applicant is frequently made by applicants who seek to proceed with an application despite the existence of a full and final release. As noted above, not all pressure, economic or otherwise will amount to duress sufficient to disregard a full and final release. I am not persuaded that the applicant has established that he was under the kind of illegitimate pressure that would amount to a “coercion of the will” as required under the case law.

49None of the factors set out in Dai v Zuo, above, for identifying a coercion of the will are present in this case. In particular, I note that there is no evidence before me that the applicant signed the settlement under protest. Significantly, the applicant had the benefit of independent legal advice which would make it unlikely that any pressure exerted on the applicant would rise to the level of duress. Finally, there is no evidence before me that the applicant ever sought to void the settlement and return the very substantial consideration paid to him under it after signing the settlements.

50The fact that the respondents may have been responsible for certain delays does not amount to duress. Likewise, the fact that the applicant was facing bankruptcy and his fear that the corporate respondent would go bankrupt also do not amount to the kind of “coercion of the will” that would amount to duress. Finally, none of the other types of pressure that the applicant says the respondents applied to him would amount to duress and justify setting aside the settlement.

Other reasons given by applicant

51I do not find that any of the other reasons provided by the applicant are valid reasons for disregarding the settlements arrived at in this case.

52Specifically, I do not accept that the Tribunal should disregard the 2008 settlement because it included a requirement that the applicant not communicate with any executives, officers, directors or other officials of the corporate respondent. The settlement required that any contact with the corporate respondent following the settlement had to be made with the corporate respondent’s Senior Vice President of Human Resources. According to the respondents, the above clause was included in the settlement because the applicant had sent numerous communications to executives, officers, directors or other officials of the corporate respondent. He continued to do so even after the 2006 settlement was entered into. Meanwhile, the applicant claims that it was impossible for him to meet the requirement to not communicate with other representatives of the corporate respondent due to his mental health issues.

53I do not agree that the Tribunal should disregard the settlement due to the inclusion of the above clause. There is no evidence before me that the applicant, his legal counsel or his psychiatrist raised any concerns about this clause at the time that the applicant signed the 2008 settlement. There is also no evidence that the respondents have forced the applicant to pay back the consideration he received under the settlements due to his failure to comply with the clause. Therefore, I do not accept the applicant’s argument that the inclusion of this clause in the 2008 settlement now provides a valid reason to disregard the settlement.

54I also do not agree that the Tribunal should disregard the settlement because no consideration was paid specifically for the applicant’s agreement to release the respondents from liability under the Code. Such an argument was made by the applicant in Perricone, above, and rejected by the Tribunal paras. 34 and 40-48 of that Decision. The respondents in this case paid the applicant a very considerable amount of money as part of the settlements. Settlements are to be viewed globally. In my view, it is not appropriate for this Tribunal to parse out how much consideration was paid for the various issues covered by the settlement or to require parties to specifically identify the portion of consideration paid for the applicant’s agreement to release the respondents from any human rights claims.

55I also do not accept that I should disregard the settlement on the basis that the applicant only became aware of the respondent’s Occupational Injury Policy in 2012, four years after entering into the 2008 settlement. The applicant claimed that the respondents hid this policy from him and other employees. In essence, he is claiming that I should disregard the settlement due to fraudulent misrepresentation by the respondents. I see no basis for this claim. The applicant has provided no information from which it can reasonably be inferred that the respondents made any kind of misrepresentation to him in regards to the Occupational Injury Policy and that they did so with the intent to deceive him. I note further that, as a provincially-regulated employee, it is not even clear to me that the applicant would even be eligible for benefits under the Occupational Injury Policy as the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A would apply to any work-related injuries.

56There may be cases in which the Tribunal would find that it is not abuse of process for an employee who has signed a settlement to proceed with an application if they subsequently discovered key information relating to alleged discrimination of which they were unaware at the time they signed a settlement. However, I find that it would be an abuse of process to permit the applicant to proceed with his LTD related allegations against the respondents in the circumstances of this case. I find that the 2008 settlement fully and finally resolved the applicant’s claim to disability benefits and that the applicant’s discovery of the Occupational Injury Policy does not serve to vitiate (render ineffective) his consent to the settlement. As noted above, the information provided by the applicant in this case is insufficient to infer any kind of fraudulent misrepresentation by the respondents.

57As well, it is not even clear that the applicant would be eligible for benefits under this policy as it appears to apply to the federally-regulated employees of Canadian Imperial Bank of Commerce. In addition, I note that the extent that the applicant is claiming eligibility for benefits under this policy, that is not a claim of discrimination. It is a claim of eligibility which, as discussed below, has no reasonable prospect of success under the Code. For all these reasons, the fact that the applicant was unaware of the corporate respondent’s Occupational Injury Policy at the time he signed the settlements is not a reason for me to disregard the settlements and permit him to proceed with his LTD related allegations before this Tribunal.

58Finally, I fail to see how the fact that a representative of the corporate respondent may have told the applicant to file a complaint with the Ontario Labour Relations Board would be a reason to disregard a binding settlement. Likewise, in my view, the respondents’ refusal to set up a trust account for the applicant is not a reason to disregard the settlement. The applicant has not provided any supporting legal authority to support his view that the Tribunal should disregard the settlements for these reasons. In my view, these factors are not valid reasons for this Tribunal to disregard a binding settlement.

Allegations covered by the 2008 settlement dismissed

59For all of the above reasons, I have found that it would be an abuse of process to proceed with this Application as against the respondents in relation to any allegations relating to events that are covered by the 2008 settlement. Therefore, it would be an abuse of process to proceed with the allegations set out in subparas (a), (b), (c), (e), (f) and (j) of para. 18. Accordingly, these allegations are dismissed.

60I note that it is unclear, on the materials filed by the parties, whether the allegation in subpara. (d) of para. 18 regarding access to the disability benefits phone line was covered by the 2008 settlement. However, for the reasons set out below, that allegation as well as all others that are not covered by the settlements must be dismissed as untimely and because they have no reasonable prospect of success under the Code.

Whether Portions of application not covered by settlements are untimely

Timing of incidents

61The allegations of discrimination that I have not dismissed as an abuse of process due to their being covered by the 2008 settlement are those described in subparas 18 (d), (g)-(i), and (k) above.

62In terms of the allegation in subpara. 18 (d), it is not clear when the applicant was first refused access to the corporate respondent’s benefits phone line. However, in his Application and in a July 26, 2013 e-mail to the corporate respondent’s counsel, the applicant stated that the respondents had been denying him access to the phone line “for the last few years”. While the applicant may have encountered an inability to access the phone line on several occasions, the relevant date for purposes of the timeliness analysis is the date that the respondents removed his access to the phone line. It appears that this occurred sometime in 2010-2011 at the latest.

63In regards to the allegation in subpara. 18 (g), the applicant was denied access to his human resources file for the first time in 2010. As for the allegation in subpara.18 (h), the application lacks specificity as to what correspondence from the respondent’s counsel the applicant found threatening. However, the documents filed by the respondents show that the applicant made complaints in 2011 about allegedly harassing and retaliatory e-mails received from the respondents’ counsel. The incident referred to in subpara. 18 (i) involving the corporate respondent’s EVP of Human Resources occurred in April 2009. Finally, the allegedly discriminatory clause referred to in subpara. 18 (k) was included in the settlement signed in 2008.

64As can be seen from this chronology, all of the incidents in the Application that were not covered by the 2008 settlement occurred more than one year before the date on which the applicant filed his Application.

Applicable Law

65Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. The Tribunal has found that there must be some thematic connection or nexus between incidents in order for them to be considered a “series of incidents” within the meaning of s. 34(1) of the Code. A series cannot be comprised of incidents relating to discrete and separate issues. Generally, the Tribunal has not considered incidents to form part of a “series of incidents” if there is a break of one year or more between incidents.

66Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed.

Findings

67The applicant filed his Application on November 6, 2013.

68The applicant claimed that the Application is timely because it relates to a series of incidents, the last of which occurred less than a year before the date he filed his Application. In particular, the applicant relied upon the Tribunal’s decision in Garrie v. Janus Joan Inc., 2012 HRTO 1955 (“Garrie”) to submit that the portion of his claim that relates to LTD benefits is timely as a series of incidents and therefore all other incidents described in his Application are also timely as the amount to a series of incidents with his allegations regarding his LTD benefits.

69In the alternative to this series of incidents argument, the applicant argued that any delay in the filing of his Application was incurred in good faith due to his mental disability.

Was the Application filed within the timeframe set out in s. 34(1) of the Code

70I do not agree with the applicant’s submission that his Application is timely because he continues to receive LTD benefits or any other benefits from the corporate respondent. Even if I were to accept the applicant’s claim regarding his LTD benefits is timely, in my view, the incidents that have not been dismissed as an abuse of process do not form a series of incidents with the applicant’s LTD claim. All of the incidents complained of that occurred after the 2008 settlement relate to distinct issues that are unconnected to the applicant’s LTD benefits. Therefore, even if I were to find that the applicant’s allegations regarding his LTD benefits were timely, this would not serve to make all of his other allegations timely as a series of incidents.

71In addition, I have already found that his claim regarding his LTD benefits should be dismissed as an abuse of process. In my view, an allegation that would constitute an abuse of the Tribunal’s process cannot be used to found a series of incidents that would render timely all other incidents that occurred more than a year before the Application was filed.

72As a final point, I note that the fact that the applicant continued to complain to the respondents about the incidents set out in the Application up to July 2013 does not render them timely. As well, the fact that the respondent did not change its position with respect to decision it had already made also does not amount to a new incident of discrimination within the meaning of the Code. See Garrie, above at para. 41 and Longtin v. Great West Life Assurance Company, 2011 HRTO 244 at paras. 11 and 15.

73For all of these reasons, I do not accept that the incidents that are not covered by the 2008 Minutes of Settlement were filed within the time frame set out in s. 34(1) of the Code.

Has the applicant established a reasonable explanation for his delay?

74I am not persuaded by the applicant’s argument that the delay in filing his Application was incurred in good faith due to his mental health issues. The correspondence filed by the parties shows that the applicant was capable of repeatedly raising his complaints with the representatives of the corporate respondent prior to filing his Application with the Tribunal. For this reason, I am not persuaded that his mental health issues provide a reasonable explanation for the delay in filing his Application. Since I have found that the applicant’s delay was not incurred in good faith, I need not consider whether any prejudice was caused to the respondents as a result of the applicant’s delay.

75For all of the above reasons, I find that all allegations that are not covered by the 2008 settlement entered into between the parties are untimely and must be dismissed on that basis.

No reasonable prospect of success

76Given my findings on the issues of abuse of process and timeliness, it is not strictly necessary for me to address whether any portions of the Application should also be dismissed on the basis that they have no reasonable prospect of success. In the circumstances of this case, I consider it appropriate to address the issue of no reasonable prospect of success. For the reasons set out below, in addition to being untimely, all allegations that are not covered by the 2008 settlement should be dismissed on the basis that they stand no reasonable prospect of success under the Code.

77Under Rule 19A of the Tribunal’s Rules of Procedure, the Tribunal has the power to dismiss allegations that stand no reasonable prospect of success. The Tribunal cannot address allegations of unfairness that are unrelated to the Code. Many experiences of unfairness that are not linked to the Code, can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination and reprisal that are linked to the prohibited grounds set out in the Code. See Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9. In order to establish discrimination under the Code, it is not sufficient for an applicant to be covered by one of the grounds protected under the Code and to allege unfair treatment. An applicant must be able to point to information that is capable of showing a link between the alleged unfair treatment and the protected characteristic.

78In my view, all the allegations that are not covered by the 2008 settlement have no reasonable prospect of success and must be dismissed. Further, I note that many of the allegations covered by the 2008 settlement that the applicant seeks to revive in this Application also stand no reasonable prospect of success under the Code.

Allegations in subpara. 18 (a)

79As noted above, the thrust of the applicant’s claim regarding his LTD benefits is an allegation that his mental illness was caused by his work and therefore that he should be eligible for benefits under the respondent’s Occupational Injury Policy. This claim has no reasonable prospect of success under the Code. This claim by the applicant is in essence a claim that his disability was caused by his work and therefore he is eligible for benefits under the Occupation Injury Policy. That is not a discrimination claim. It is not a claim that the applicant has been treated adversely because of his disability. It is a claim that he was entitled to certain benefits and that he was denied those benefits.

80An application related to a denial of benefits will be dismissed if there is no allegation of discrimination under the Code. In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at para. 5, the Tribunal stated:

This Tribunal does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program. An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code. A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success.

81Although Seberras dealt with a denial of statutory benefits, the reasoning in the decision applies with equal force to benefits denied by private entities. See, for example, Lawrence v. Co-operators Life Insurance Company, 2014 HRTO 1490 and Khoja v. The Standard Life Assurance Company of Canada, 2014 HRTO 1196.

Allegations in subparas 18 (d), (g), (h), (i) and (k)

82The applicant has failed to point to any evidence that is capable of establishing a link between his disability and the alleged conduct challenged in subparas 18 (d), (g), (h), (i) and (k) above. Specifically, the applicant has provided no information that can reasonably establish that his disability was a factor in why the respondents decided to deny him access to the disability benefits phone line. The corporate respondent stated that it denied the applicant access to the phone line because of its concern that the applicant was attempting to use any phone conversation as a means to further his litigation objectives. The applicant has not provided any information that can reasonably establish that his disability was a factor in the respondent’s decision to deny him access to the phone line.

83The applicant appears to claim that he required access to the benefits phone line as an accommodation for his disability. I note that the applicant continued to have access to the corporate respondent’s Senior Vice President of Human Resources if he required any information relating to his benefits. As a result, I am not persuaded that there were any disability-related reasons why the applicant specifically needed access to the benefits phone line. For these reasons, I am not persuaded that the applicant’s allegation regarding denial of access to the disability benefits phone line has a reasonable prospect of success under the Code.

84The applicant also failed to provide any information that could reasonably show that the respondents denied him access to his human resources file even in part because of his disability. Therefore, this allegation must also be dismissed on the basis that it stands no reasonable prospect of success under the Code.

85The applicant has not provided information that can reasonably establish that the corporate respondent’s counsel harassed him because of disability. At most, the applicant has claimed a general form of harassment that he felt in his communications with the corporate respondent’s counsel. I note that the applicant has raised numerous and repeated complaints against the respondents. It is the role of the corporate respondent’s counsel to defend his client’s interests. The applicant has failed to provide sufficient information that any of the communications from respondent’s counsel amounted to harassment or that any such harassment is related to his disability.

86Similarly, the applicant has failed to provide information that can reasonably establish that the corporate respondent’s EVP of Human Resources allegedly misled the police and courts because of the applicant’s disability. As noted above, the applicant had a practice of repeatedly communicating with executives, officers, directors and other officials of the corporate respondent. Between 2007 and 2009, he sent certain e-mails to the corporate respondent’s EVP of Human Resources that were aggressive and vulgar in tone. This series of e-mails culminated in an e-mail in which the applicant addressed the EVP of Human Resources, who is a woman, by calling her a vulgar term for a female body part.

87In his submissions, the applicant sought to downplay the serious nature of his inappropriate communications with the corporate respondent’s EVP of Human Resources. The issue before me is not whether it was fair of the EVP of Human Resources to contact the police. The issue is whether the applicant has been able to point to information that could reasonably establish that the EVP of Human Resources contacted the police at least in part due to the applicant’s disability rather than for valid non-discriminatory reasons such as a genuine concern about the applicant’s conduct. I find that he has not. I am fortified in this conclusion by the fact that, after independently investigating the matter, the police charged the applicant with criminal harassment.

88Finally, I find that the applicant’s allegations regarding the 2008 settlement also stand no reasonable prospect of success. The clause at issue prohibited the applicant from contacting members of the corporate respondent’s executive, officer, directors and other officials of the corporate respondent. Under the clause, any contact between the applicant and the corporate respondent following the settlement had to be made with the corporate respondent’s Senior Vice President of Human Resources. As noted above, the respondents state that the above clause was included in the settlement because the applicant had sent numerous communications to executives, officers, directors or other officials of the corporate respondent and continued to do so even after the 2006 settlement was entered into.

89The applicant provided no information to suggest that he, his psychiatrist or his independent legal counsel raised any concerns about the clause at the time or that he made the respondents aware that the clause failed to accommodate any alleged disability-related needs he has relating to his mental health issues. The applicant also did not suggest that the respondents required him to repay any of the consideration they paid to him under the settlement following his breaches of the clause. In these circumstances, I find that his allegations regarding the clause stand no reasonable prospect of success.

Reprisal allegations

90In my view, the applicant’s allegations of reprisal should also be dismissed on the basis that they stand no reasonable prospect of success.

91Section 8 sets out the Code’s protections against reprisal. It states as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

92In order to make out a claim of reprisal, the applicant must be able to establish that the respondents intended to reprise against him for claiming or enforcing his rights under the Code. See Noble v. York University, 2010 HRTO 878.

93In his Application, the applicant uses the term reprisal in the general sense of the word – that is retaliation or just unfair treatment. He has provided no information pointing to evidence that might link the respondents’ actions to efforts by the applicant to enforce his rights under the Code. Therefore, I must find that the applicant’s reprisal allegations stand no reasonable prospect of success.

94For the reasons set out above, the applicant’s allegation regarding entitlement to benefits under the corporate respondent’s Occupational Injury Policy in subpara. 18 (a) and his allegations in subparas 18 (d), (g)-(i) and (k) above must be dismissed on the basis that they have no reasonable prospect of success.

whether Great West Life should be added as a respondent

95The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?
2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
3. Would it be fair, in all the circumstances, to add the proposed respondent?

96Applying the above analysis from Smyth, I find that it is not appropriate to add Great West Life as a respondent to this Application because the allegations in the Application do not support a finding that Great West Life violated the Code. The only allegation in the Application that relates in any way to Great West Life is the applicant’s allegation that he was discriminated against by being provided benefits under the corporate respondent’s LTD policy rather than its Occupational Injury Policy.

97The Occupation Injury Policy applies to work-related injuries whereas the LTD policy applies to non-work-related injuries. The respondents took the position that the applicant’s mental health issues were not work-related. That is the core of the dispute between the parties because the applicant claims that his mental disability was work-related and therefore, in his view, he was eligible for benefits under the corporate respondent’s Occupational Injury Policy.

98In my view, the applicant’s LTD related allegations cannot support a finding that Great West Life violated the Code for two reasons. First, based on the materials provided by the parties, the only actions that Great West Life took in relation to the applicant were to grant his application for LTD benefits and to direct him to the corporate respondent when he complained about not being covered by the Occupational Injury Policy. Neither of these actions can reasonably support a finding of a Code violation by GWL.

99Second, the substance of the applicant’s claim against GWL is that he should be eligible for benefits under the Occupational Injury Policy. For the same reasons that this claim stands no reasonable prospect of success against the respondents, it also stands no reasonable prospect of success against Great West Life. See paras. 79 to 81 above. This claim is in essence one of eligibility for benefits rather than one of discrimination in the provision of benefits.

100For these reasons, I find that it is not appropriate to add Great West Life as a respondent to this Application.

Prohibition on Publishing Audio Recording of Hearing

101In the teleconference portion of the preliminary hearing, counsel for the respondents asked me to inquire whether the applicant was audio-recording the hearing. The applicant indicated that he was in fact audio-recording the hearing. He stated that he needed to record the hearing due to his disability and in order to remember what was said. I permitted the applicant to audio-record the hearing.

102However, I advised him of the Tribunal’s Practice Direction on Recording Hearings. Specifically I advised him of the section entitled “Self-recording and Transcription” which states:

If a party wishes to record a hearing to supplement his or her notes, he or she must get the permission of the panel and provide a copy of any recording or transcription to the other parties and the HRTO (on a USB device or CD). Such recordings or transcriptions do not form part of the HRTO's record of proceedings, including the record filed in court in respect of any application for judicial review. The recording or transcription may not be publicized or used for any purpose other than in the proceeding before the Tribunal.

103I read this section out to the applicant in the teleconference portion of the preliminary hearing and he agreed to be bound by it. The applicant asked whether he would be permitted to publicize the audio-recording when the case is over. I advised the applicant that the Practice Direction is clear as it states that any recording of a hearing may not be “publicized” in the sense of made public in any way whatsoever or used for any purpose other than the proceeding before the Tribunal. This undertaking not to publish a recording or transcription does not expire at the end of the case. The applicant undertook to comply with this portion of the practice direction.

ORDER

104For the above reasons, the Applicant is dismissed in its entirety. Therefore, I need not address whether it would have been appropriate to remove the personal respondents if the Application had proceeded.