HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Karol Sadowski
Applicant
-and-
City of Hamilton
Respondent
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Sadowski v. Hamilton (City)
APPEARANCES
Karol Sadowski, Applicant
Wade Poziomka and Jennifer Zrdiluk, Counsel
City of Hamilton, Respondent
Daryn Jeffries and Evelyn Dormer, Counsel
Canadian Union of Public Employees and its Local 5167, Intervenor
Elizabeth Nurse, Counsel
1This is the applicant’s second application filed with the Human Rights Tribunal of Ontario (“the Tribunal”). The first was resolved by Memorandum of Settlement executed on May 29, 2014 (“the Memorandum”). This Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) (collectively “the reprisal Application”). The applicant seeks monetary and non-monetary remedies, if the reprisal Application is upheld, including “instatement” to the position of parking control officer. The reprisal Application was filed on December 11, 2014.
issues
2The issues to be determined in this Interim Decision are:
Are parts of the reprisal Application barred by the terms of the release contained in the Memorandum, and would it be an abuse of process for the reprisal Application to proceed in its entirety?
What job positions can the applicant pursue in the reprisal Application? and,
Is the applicant trying to challenge the reasons for his 2012 termination in the reprisal Application?
background
3The applicant previously worked for the respondent as a parking control officer. This was a unionized position and the applicant was represented by the intervenor as his bargaining agent.
4In May 2012, the respondent terminated the applicant’s employment. The applicant challenged his termination by filing, through the intervenor, a grievance and by filing with the Tribunal an application (“the termination Application”). In both the grievance and the termination Application, the applicant sought reinstatement as a remedy.
5On May 29, 2014, the applicant, respondent and intervenor each executed a Memorandum of Settlement (“the Memorandum”) which resolved the grievance and the termination Application.
6Since his termination, the applicant has applied for approximately 15 positions with the respondent, most of which are parking control officer positions. In the reprisal Application, which was filed after the termination Application, the applicant makes specific allegations about two parking control officer positions which pre-date May 29, 2014, and one that post-dates May 29, 2014. In his Reply, the applicant identifies 10 positions which pre-date May 29, 2014 and two that post-date it. In his witness statement, the applicant identifies three positions to which he applied which pre-date May 29, 2014 and six which post-date it. He alleges that he was not considered for any of these jobs because of his disability and as reprisal for filing his termination Application.
7The respondent denies the allegations against it. Amongst other positions taken, it submits that the applicant has not been offered a position because of the performance issues that he had which led to his termination in 2012.
8A hearing in this Application was scheduled to commence on May 16, 2016. Prior to the hearing, a Case Assessment Direction (“CAD”) was issued identifying some preliminary issues. This included the respondent’s position that most of the subject-matter of the reprisal Application had been dealt with by the settlement reached in the Memorandum and that the release in the Memorandum bars most of the reprisal Application from proceeding. The Tribunal heard the parties’ submissions about these issues during the hearing. The applicant was given the opportunity to file with the Tribunal copies of cases to which he referred during his submissions, but did not have with him at the hearing, and the respondent was given the opportunity to respond to those cases. The hearing is adjourned pending the release of this Interim Decision. The submissions made during the hearing, as well as those sent in subsequently, have all been considered in issuing this Interim Decision.
the termination application
9The termination Application was filed by the applicant in May 2013, and predates the reprisal application. It alleged that the applicant’s termination from the parking control officer position was discriminatory because of disability. In the “What Happened” section of the termination Application, the applicant made a number of allegations about his employment, up to his termination. He provided information about post-termination incidents, including discussions during the grievance meeting and an investigation. As part of his requested remedies, the applicant sought loss of wages for approximately 35 years and return to the parking control officer position.
10In the “How the Events You Described Affected You” section, amongst other information provided, the applicant claimed, “Since I was let go, I have sought out other work opportunities, within and outside of the City of Hamilton, only to see lesser qualified candidates receive full-time positions as Parking Control Officers”. The other work opportunities with the respondent are not identified.
11The termination Application was resolved on May 29, 2014 by the Memorandum.
the memorandum of settlement
12As there is a confidentiality clause, I am mindful to set out only the relevant paragraphs of the Memorandum. The applicant is identified as “the Grievor” and the intervenor is identified as “the Union”. The relevant sections are:
AND WHEREAS the remedy being sought in the grievance was the immediate reinstatement of the Grievor to permanent employment with the City;
AND WHEREAS the Parties, being the City, the Union, and the Grievor, intend to fully and finally resolve all matters between them which are in any way related to the Grievance;
The City shall pay to the Grievor, [….] as compensation in return for the Grievor’s agreement, as evidenced by this Memorandum, to forego the right to seek reinstatement through the arbitration….
The City agrees to pay to the Grievor a further sum [….] as damages arising from his claims of human rights violations as particularized in his human rights application, being Tribunal No. 2013-14551-I, as currently filed with the Human Rights Tribunal of Ontario. Such payment will be made within thirty days of receipt by the City of confirmation of the Grievor having filed a Form 9 withdrawing his Application against all Respondents.
In return for consideration provided in paragraphs 2, 3, and 4 of this Memorandum, the Grievor hereby releases and forever discharges the City, its subsidiaries, affiliates, and successors and each of their respective officers, directors and agents, and employees [collectively the Releasees] from any and all actions, complaints, causes of action, claims, demands and proceedings of whatever kind for damages, indemnity, costs, compensation or any other remedy which the Grievor had or may now have arising out of his employment with the City or the termination of that employment. This release contemplates any and all claims, allegations or applications that may have or could have been made pursuant to the Employment Standards Act, 2000, the Labour Relations Act, 1995 or the Human Rights Code and the Grievor agrees and acknowledges that the consideration provided to [him] in this Memorandum constitutes sufficient consideration for this release.
For greater certainty, the Grievor acknowledges and agrees that this settlement resulted from a consideration of all aspects of any human rights complaint that he made in respect of his employment and the cessation thereof as alleged in the Application No. 2013-14551-I filed with the Human Rights Tribunal of Ontario and that the payment contemplated by this settlement constitutes a full settlement of those claims without prejudice to the City’s and [individual]’s position in defending such claims. In releasing his human rights claims, the Grievor understands, agrees and accepts that he is waiving the opportunity to make any oral submissions to the Tribunal in respect of that application.
In accordance with the requirements of paragraph 3 of this Memorandum, the Grievor undertakes to immediately, being within five (5) days of the execution of this Memorandum, complete and deliver to the Tribunal an executed Form 9 and to provide a copy of the executed and delivered Form 9 to the City.
The Parties jointly consent to the Tribunal finally disposing of File No. 2013-14551-I and closing the Tribunal file.
The Grievor agrees that this Memorandum of Settlement is not an admission of liability by the City or, in respect of the Human Rights Application by the City and [individual], and in fact such liability is denied.
The Grievor agrees that he has been fully and fairly represented by the Union in respect of his Grievance and that he has entered into this Memorandum of Settlement on his own volition and without duress.
The Grievor acknowledges by signing this Memorandum of Settlement that he understands and accepts the terms in their entirety.
13A clause prohibiting the applicant from applying for or accepting employment from the respondent “at any point in the future” was initially included in the Memorandum as para. 12, but was crossed out. The parties initialled the crossed-out clause.
the parties’ submissions
The Respondent’s Submissions
Are Parts of the Reprisal Application Barred by the Terms of the Release in the Memorandum and Would it be an Abuse of Process for the Reprisal Application to Proceed in its Entirety?
14The respondent submits that the applicant is prohibited from raising allegations about any job position to which he applied before May 29, 2014, the date of the Memorandum, because of paragraph 5 of the Memorandum (“the release clause”). The release clause is clear and unambiguous and bars the applicant from making any legal claim about any position that pre-dates the Memorandum, whether it was raised in the Application, Reply, or applicant’s witness statement.
15The first sentence of the release clause releases the respondent from any claims or complaints pertaining to the applicant’s employment or the termination of his employment. The second sentence makes it clear that the applicant releases the respondent from any claims up to the date of the Memorandum, with a specific reference to the Code.
16The applicant’s allegations in the reprisal Application, the respondent submits, arise out of his employment with the respondent, as he continues to challenge the reasons for his termination. Further, he alleges that he has not received a position to which he has applied after his 2012 termination because the respondent relies upon the performance issues that led to his 2012 termination.
17Furthermore, the respondent submits, in the termination Application, the applicant referred to other job possibilities with the respondent for which he was not successful and the release resolves everything pertaining to the termination Application. It does not matter that the applicant’s reference to these job opportunities falls under “the effect on you” section of his termination Application, given the wording of paras. 3, 5, 6, and 7 of the Memorandum, the settlement of all of the termination Application, and the applicant’s Form 9 withdrawal of the termination Application.
18Paragraph 12 of the Memorandum was crossed out and initialled by the parties. This is another indication, the respondent submits, that all possible claims that applicant had were resolved as of May 29, 2014 because para. 12 contains the words “in the future”. Since the reprisal Application was filed in December 2014, after the applicant was unsuccessful with an October job competition, it does not make any sense that allegations that pre-date the Memorandum were alive. The respondent acknowledges that the applicant has not removed himself from the Code’s protection for any claims that post-date the Memorandum.
19It would be an abuse of process, the respondent submits, to permit the reprisal Application to proceed with matters that have been resolved or otherwise released. The Tribunal should promote settlements, settlements should be enforced, and it has broad implications for the Tribunal and the system if the applicant can continue with allegations which pre-date the Memorandum.
What Positions can the Applicant Pursue in the Reprisal Application?
20As noted in paragraph 6 above, the applicant has referenced different job applications in different pleadings and material filed with the Tribunal. The respondent submits that the applicant is bound by the allegations contained in his pleadings and that he cannot raise new allegations about positions to which he has applied that were not set out or particularized in the reprisal Application. The only allegation which can continue is in relation to the October 2014 job competition for the parking control officer position. Accordingly, in this hearing the applicant is prohibited from relying upon job competitions referred to in the Reply and the witness statement that were not mentioned in the reprisal Application. While replies are part of the Tribunal’s pleadings, the positions that are identified in the Reply and his witness statement are bereft of allegations, a case crystallizes at some point, and the respondent is entitled to know the case it is required to meet.
Is the Applicant Trying to Challenge the Reasons for his 2012 Termination?
21The respondent objects to evidence about and/or challenges to the applicant’s performance or his 2012 termination being entered as evidence during the hearing of the reprisal Application. The respondent agrees that contextual evidence is commonly entered in hearings. However, it submits, the applicant is really seeking to challenge the reasons for his 2012 termination, which is an abuse of process. The release bars the applicant from challenging the reasons for his termination as that issue was resolved by the Memorandum. The fact that the applicant withdrew his termination Application, as set out in para. 7 of the Memorandum, strengthens the respondent’s position, as the applicant withdrew, rather than settled, his allegations challenging the respondent’s reasons to terminate him.
22The respondent submits that it has not offered the applicant a job subsequent to his termination for a number of reasons, all of which are non-discriminatory on the basis of either disability or reprisal under the Code. This includes reliance upon the applicant’s previous performance issues, which are not disability-related and which the applicant cannot now challenge, a requirement under the collective agreement to offer positions to internal candidates before hiring external candidates, and the cancellation of one of the competitions.
The Applicant’s Submissions
Are Parts of the Reprisal Application Barred by the Terms of the Release in the Memorandum and Would it be an Abuse of Process for the Reprisal Application to Proceed in its Entirety?
23The applicant submits that the release in the Memorandum is only a partial release. It only releases the respondent from issues arising out of his employment or his 2012 termination, but not incidents subsequent to his 2012 termination or all matters up to the date of the Memorandum. It does not contain language saying that the applicant releases the respondent from all matters up to the date the release or Memorandum was executed, unlike some releases which contain that specific language. The language in para. 6 “for greater certainty” reinforces that what was released in para. 5 was limited to his employment and his 2012 termination and not all human rights matters.
24Furthermore, the release does not prohibit him from alleging discrimination because of disability and reprisal for positions to which he applied subsequent to the date the Memorandum was executed. This includes the positions to which he applied on: July 2, 2014; October 30, 2014; two positions on May 6, 2015; May 20, 2015; and July 7, 2015. These positions are part of the applicant’s allegations that he was discriminated against on the basis of disability or reprisal and ought to be before the Tribunal.
25This position is reinforced, the applicant submits, by the fact that the respondent sought to include a provision in the Memorandum which would have precluded him from ever applying for or accepting a job with the respondent again. The applicant rejected that provision and it was struck out of the Memorandum, with the parties initialling the strike out. Accordingly, the parties contracted that the applicant could continue to apply for positions with the respondent. Furthermore, the applicant submits, a release which prevents an applicant from filing or pursuing a prospective claim upon events that occur in the future is not legally enforceable.
26The principles of equity should apply, the applicant submits, and the Tribunal should not be inclined to rule that the matter has been dealt with. Because of his disability, the applicant is not able to pursue employment in the field in which he would like to work, policing, and as such continues to remain interested in applying for employment with the respondent. The respondent, the applicant submits, has “played” the applicant by refusing to provide fair consideration to the applicant on discriminatory grounds.
27The applicant provided an analogy about an employment situation with Joe and Martha in which Joe sexually harasses Martha, the employer reaches a settlement with Martha, and then later fires her claiming she did not get along with Joe. These same principles apply in this case.
What Job Positions can the Applicant Pursue in the Reprisal Application?
28The job competitions set out in para. 24, above, are identified in the Application, Reply, and witness statement. Replies are pleadings in the Tribunal’s process. It was reasonable for the respondent to consider what is in the Reply and it had notice in advance of the hearing about the job competitions about which the applicant is alleging discrimination and reprisal. The applicant asserts the allegations for the job positions mentioned in the Reply and witness statement are the same as those set out in the Application – that he is a qualified candidate and did not receive the position due to discrimination based upon disability and reprisal.
Is the Applicant Trying to Challenge the Reason for his 2012 Termination?
29The applicant agrees that the release language prevents him from alleging that his 2012 termination was discriminatory and agrees that a term of the Memorandum was that he withdrew his termination Application. The withdrawal of his termination Application, through the filing of a Form 9, does not mean that the events did not happen. However, the allegations pertaining to the applicant’s 2012 termination, specifically that it was discriminatory on the basis of disability, are not raised for findings of liability, but are raised as context to the reprisal Application. The applicant submits that they should be considered by the Tribunal.
30Finally, the applicant submits, he could file a new application every time he is unsuccessful in obtaining a job for which he applies with the respondent, or have the Tribunal conduct an inquiry. However, this should not be necessary given that there is repeat conduct by the respondent and the Tribunal should consider all the positions he has identified.
The Intervenor’s Submissions
31The intervenor agreed that the Memorandum settled the applicant’s issues pertaining to his employment and 2012 termination. It submitted that it was not taking a position on the issues raised in this Interim Decision.
law and analysis
Are Parts of the Reprisal Application Barred by the Terms of the Release in the Memorandum and Would it be an Abuse of Process for the Reprisal Application to Proceed in its Entirety?
32In this case, I find that the terms of the Memorandum, including the release clause, bar the applicant from raising allegations which pre-date the Memorandum and that it would be an abuse of process to permit applicant from proceeding with these allegations.
33Section 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. The 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 v. Fabco Plastics Wholesale, 2010 HRTO 1655 at para. 31, and N.T. by his next friend D.B. v. Durham District School Board, 2013 HRTO 1715 at para. 16.
34At the same time, it is well-established that, although a person may agree not to proceed with a human rights claim based on past events, he cannot contractually agree to put himself beyond the reach of the Code’s protection in future. See Knipfel v. York (Regional Municipality), 2013 HRTO 1978 at para. 12; Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145 at p. 158; and N.T., above, at para. 22. Any contract that purports to have this effect is void as contrary to public policy. See Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 at pp. 213-214.
35The contractual intent of the parties is to be determined by the reference to the words they used in drafting their agreement. It is unnecessary to consider extrinsic evidence when an agreement is clear and unambiguous on its face. This principle applies to the interpretation of minutes of settlement. See Thornton v. Toronto Police Services Board, 2012 HRTO 2412 at paras. 12-16, and N.T., above, at para. 26.
36Furthermore, the Tribunal should consider the “literal and ordinary meaning” to determine whether or not it was the parties’ intention to enter into a full and final release. See Better Beef v. MacLean (2006), 2006 CanLII 17930 (ON SCDC), 80 O.R. (3d) 689 (Ont. Div. Ct.).
37In light of the above, the starting point for the interpretation of the release is the actual wording of the Memorandum.
38I agree that the Memorandum does not contain specific language that the applicant releases the respondent of all matters or issues up to the date of the Memorandum. The language before me is different from that in Knipfel, above. Para. 8 of that decision set out the release language, which stated it was a “full and final settlement of any existing, planned or possible complaint(s) against [the respondent] under the Ontario Human Rights Code up to the date of execution of the Release….”.
39Notwithstanding that there is no specific language like in Knipfel, above, I am persuaded that the terms of the Memorandum prevent the applicant from pursuing any allegations which pre-date May 29, 2014, the date the Memorandum was executed. My reasons are as follows.
40The Memorandum commences with the identification of the applicant’s temporary employment with the respondent ending May 24, 2012 and the union filing a grievance about the end of that temporary employment. One of the preamble clauses states that the remedy sought in the grievance is the “immediate reinstatement of the Grievor to permanent employment with the City”.
41In para. 2 of the Memorandum, the respondent agreed to make a payment to the applicant “…as compensation in return for the Grievor’s agreement, as evidenced by this Memorandum, to forego the right to seek reinstatement through the arbitration in front of arbitrator….”
42In para. 3 of the Memorandum, the respondent agreed to make a payment “as damages arising from his claims of human rights violations as particularized in his [termination Application]”. The payment would be made after receipt of confirmation of the applicant filing a Form 9 withdrawing his Application against all respondents. One of the remedies that the applicant was seeking in the termination Application was loss of wages for 35 years and return to his position as parking control officer.
43In consideration of paras. 2 and 3 (and another clause, which is not relevant to this analysis), the applicant released the respondent in para. 5 “… from any and all actions, complaints, causes of action, claims, demands and proceedings of whatever kind for damages…. Compensation or any other remedy which the Grievor had or may now have arising out of his employment with the City or termination of that employment.” Clearly, with this language, the applicant was foregoing the opportunity of being reinstated to the position of parking control officer after the Memorandum was executed.
44It is inconsistent, in my view, based upon the language in para. 5, for the applicant to forego the opportunity to be reinstated to his former position of parking control officer and release the respondent of that claim, and still be able to pursue two further opportunities in the reprisal Application, for the same position, seeking the same remedy – that is, receiving the position, be it through reinstatement or “instatement” as requested in the reprisal Application.
45The applicant asserts, in the pre-May allegations in the reprisal Application, that he did not receive offers due to performance issues from his previous employment. The first sentence of para. 5 is clear that the applicant released the respondent from all legal challenges arising from his employment or termination of that employment. In addition to the reasons set out above, I find that the pre-May allegations in the reprisal Application are barred from proceeding in light of the language of the first sentence of para. 5 of the Memorandum.
46Furthermore, the last sentence of para. 5 of the Memorandum makes it clearer that the release pertains to all claims, allegations, or applications that may have been made or could have been made pursuant to the Code. Allegations about job positions that pre-date May “may have been made” or “could have been raised” by the applicant as of the date the Memorandum was executed, as they clearly were issues about which he knew at the time.
47Para. 6 of the Memorandum states that the applicant acknowledges and agrees that the settlement resulted from a consideration “of all aspects of any human rights complaint that he made in respect of his employment and the cessation thereof”. As set out in para. 10 above, in his termination Application, the applicant described in the “effect on me” section that he applied for other positions with the respondent, but was unsuccessful in securing employment. The allegations in the reprisal Application that pre-date the Memorandum are related to the applicant’s employment and his 2012 termination.
48In light of my findings, I do not need to consider the significance, if any, of the language of para. 12 which was ultimately crossed out of the Memorandum.
What Job Positions Can the Applicant Pursue in the Reprisal Application?
The Application
49As set out above, the Memorandum contains a release barring the applicant from pursuing allegations about job positions which pre-date May 2014. Specific to the Application, the applicant is prohibited from advancing allegations about the parking control officer positions in August 22, 2013 and April 23, 2014. He can continue with his allegations about the October 30, 2014 parking control officer position.
The Reply
50I agree with the parties’ submissions that a Reply is part of the pleadings before the Tribunal. See Killeen v. Soncin Construction, 2013 HRTO 350 at para. 53.
51The applicant’s Reply, which was filed on March 16, 2015, is quite detailed. At para. 16 of the Reply, and in response to para. 43 of the Response, the applicant sets out the list of positions to which he has applied since his 2012 termination. He identifies 12 positions to which he applied from October 18, 2012 to October 30, 2014. During the hearing, the applicant represented that he is alleging that he was subjected to discrimination because of disability and/or reprisal for all of these positions.
52Nine of these positions were not identified in the Application. Ten of the positions pre-date May 29, 2014, the date the Memorandum was executed. Eight are more than one year before the Reply was filed and may be untimely. Two, a parking adjudicator position from July 2, 2014, and a parking control officer position from October 30, 2014, post-date the Memorandum. Allegations about the October 30, 2014 position were in the reprisal Application.
53For the reasons set out above, the positions identified in the Application and Reply which pre-date the Memorandum are barred in light of the release and the terms of the Memorandum.
54I agree with the Tribunal in Killeen, above, which stated, at para. 53, that it is reasonable to expect the respondent to have regard to the pleadings contained in the Reply when determining the case it has to meet. I am satisfied that the respondent has had sufficient notice of the two post-May 2014 job competitions identified in the Reply: the July 2, 2014 parking adjudicator position and the October 30, 2014 parking control officer position. Their mention is also timely in that the Reply was filed in March 2015.
55Even though the applicant did not specifically allege, in the Reply, that he was discriminated in these positions by the respondent on the basis of disability and reprisal, I accept that it is reasonable to infer that because he did not receive these positions that his position, that he was discriminated and/or reprised against, remained the same.
The Applicant’s Witness Statement
56The applicant’s witness statement, filed in April 2016, refers to positions to which he applied which pre-date and post-date the Memorandum. Those competitions which pre-date the Memorandum are barred from proceeding, for the reasons set out above. There are six positions which post-date the Memorandum, two of which are the parking adjudicator position from July 2, 2014 and the parking control officer position from October 30, 2014. As set out above, allegations about them can continue.
57There are four more positions listed which post-date the Memorandum. They are: May 6, 2015 special enforcement bylaw officer; May 6, 2015 animal control officer; May 20, 2015 property standards bylaw officer; and July 7, 2015 special enforcement bylaw officer.
58The new competitions are timely, in that they are raised within one year of the date that they occurred; however, witness statements are not pleadings before the Tribunal and the applicant has not filed a Request for Order During Proceedings seeking to amend his Application. Further, the witness statements were filed approximately one month before the hearing was to commence and I agree with the respondent that at some point the allegations must “crystallize” and the respondent needs to know the case against it. Accordingly, these additional four positions are not properly within the scope of the reprisal Application and the applicant cannot rely upon the job positions from May 2015 and July 2015.
Is the Applicant Trying to Challenge the Reasons for his 2012 Termination?
59The applicant can introduce some facts about his previous employment with the respondent, and his 2012 termination, as context for his reprisal Application, but he cannot challenge the reasons for his 2012 termination.
60In a number of Tribunal decisions, the Tribunal has permitted an applicant to introduce allegations which have been resolved, or are untimely, to provide context to the allegations at issue in the application, but not to seek remedies for such allegations. See, for example, Killeen, above, at paras. 36 and 38, Haughton v. Genco Distribution System of Canada Inc., 2015 HRTO 816 at para. 29, Sandhu v. Regional Municipality of Peel Police Services Board, 2014 HRTO 1394 at para. 8, and Yardley v. McMaster University, 2016 HRTO 490 at para. 14. However, in these cases, cited by the applicant, the applicant had not executed a release and/or withdrawn a previous application which was before the Tribunal as is the situation before me.
61In N.T., above, at para. 32, the Tribunal found that it would be an abuse of process to permit allegations which pre-dated a release to proceed. At para. 33, the Tribunal found that the extent to which any evidence related to any prior events may be admitted to give context, was best left to the adjudicator presiding over the hearing to determine.
62In the reprisal Application, I am the hearing adjudicator.
63The applicant had the opportunity to challenge the reasons for his 2012 termination and did so by filing his grievance and his termination Application. As set out above, not only did the applicant release the respondent from any claims pertaining to his employment or the cessation of his employment in the Memorandum, but he also filed a Form 9 for his termination Application. A Form 9, Request to Withdraw, is a Tribunal form. It is a withdrawal of an Application, and its underlying allegations, such that the applicant withdrew his allegations and challenges about his 2012 termination. It would be an abuse of the Tribunal’s process and contrary to the principles of finality for the respondent to have to defend itself now against allegations pertaining to the applicant’s 2012 termination. Accordingly, the applicant can introduce limited evidence about his employment and 2012 termination, as context, but he cannot introduce evidence challenging any performance issues or the reasons for his 2012 termination in his reprisal Application.
order
64The Tribunal orders the following:
The allegations in the reprisal Application, Reply and witness statement which pre-date May 29, 2014, the date of the Memorandum, are barred by the release;
The applicant can proceed with his allegations in the reprisal Application and Reply about the July 2, 2014 parking adjudicator position and the October 30, 2014 parking control officer position; and,
The applicant can introduce limited evidence about his employment and 2012 termination as context, but cannot introduce any evidence that challenges any performance issues or reasons for his 2012 termination.
next steps
65The parties indicated that this ruling would likely resolve their outstanding production issues. If the parties cannot resolve those issues on their own, they are directed to email the Tribunal, requesting that a case management call be scheduled to address the outstanding production issues.
66The Tribunal will contact the parties to schedule two continuation hearing dates. If additional hearing dates are required, they will be canvassed during the hearing.
67In light of this order, any additional documentation, witness statements or revised witness statements should be filed with the Tribunal, and copied to the other parties, no later than 14 days before the next scheduled hearing day.
68When the hearing resumes, the Tribunal will offer, again, mediation-adjudication. It will also seek submissions from the parties on whether the hearing should be bifurcated with respect to remedy, in the event the Application is upheld.
Dated at Toronto, this 17th day of June, 2016.
“Signed by”
Alison Renton
Vice-chair