Joe Panchyshyn v. Canadian Base Operators and Black & McDonald Limited, 2016 HRTO 835

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joe Panchyshyn Applicant

-and-

Canadian Base Operators and Black & McDonald Limited Respondents

DECISION

Adjudicator: Ken Bhattacharjee Date: June 21, 2016 Citation: 2016 HRTO 835 Indexed as: Panchyshyn v. Canadian Base Operators

APPEARANCES

Joe Panchyshyn, Applicant Self-represented

Canadian Base Operators and Black & McDonald Limited, Respondents Katherine Ford, Counsel

Introduction

1The purpose of this Decision is to decide whether the Application should be dismissed as an abuse of process because the applicant signed Minutes of Settlement and a Release.

2The parties attended a preliminary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application. The following are my reasons for the dismissal.

BACKGROUND

3The applicant was employed by the respondent, Canadian Base Operators, which is a joint venture company formed by the respondent, Black & McDonald Limited. On October 28, 2013, he filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), with the Tribunal, which alleged that the respondents discriminated against him with respect to employment because of his disability, and subjected him to reprisal.

4On July 7, 2014, the parties attended a mediation at the Tribunal. On the same day, the respondents signed Minutes of Settlement and a Release resolving the Application. Following the mediation, the applicant consulted with legal counsel. On July 10, 2014, he signed the Minutes of Settlement and Release.

5The Minutes of Settlement included the following provisions:

• The Applicant's employment with the Employer shall be terminated effective July 7, 2014.
• The Employer will pay to the Applicant the amount of $30,000.00, less applicable deductions. The Applicant acknowledges and agrees this amount fully satisfies any amounts he may be entitled to upon termination of employment in accordance with the Ontario Employment Standards Act, 2000.
• The Employer agrees to pay to the Applicant a lump sum payment of $30,000.00 payable as general [damages] under the Code.
• The Employer will provide the Applicant with access to outplacement services. The Employer will retain the discretion to select the provider of these outplacement services and the package of services provided.
• The Employer will provide the Applicant a letter of reference in the form attached as Attachment "B" to these Minutes of Settlement. All reference checks shall be directed by the Applicant to Erin Ayotte, National Human Resources Advisor for the Employer, who will provide confirmation of employment in a manner consistent with the letter.
• The Employer will issue a Record of Employment for the Applicant, indicating the reason for the interruption in earnings being "unable to perform current modified duties without pain or difficulty".
• By their signature hereunder, the Parties confirm that they have read and understood the terms of these Minutes of Settlement; have sought and received independent legal advice in respect of these Minutes of Settlement or have chosen to forego independent legal advice at their sole discretion; and enter into these Minutes of Settlement freely, voluntarily and without duress.

6The Release provided, among other things, that in consideration of the terms of settlement set out in the Minutes of Settlement, the applicant released and forever discharged the respondents from all legal actions, including any claim under the Code, which he had or may have in the future relating to his employment, including the cessation of his employment.

7The respondents complied with all terms of the Minutes of Settlement.

8On December 22, 2015, the applicant filed a new Application under s. 34 of the Code, which alleged that the respondents subjected him to reprisal. Specifically, he stated that the Minutes of Settlement provided that his employment was terminated because he was "unable to perform current modified duties without pain or difficulty", but he recently received a letter, which informed him that the real reason that the respondents wanted to terminate his employment was because he had filed a human rights Application against them. He stated that he was not aware of this reason at the time that he signed the Minutes of Settlement and Release, and that it is contrary to the reason for termination set out in the Minutes of Settlement.

9On February 5, 2016, the Tribunal issued a Case Assessment Direction, which stated at paras. 2-3:

Having reviewed the file, the Tribunal has decided to hold a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that the applicant has signed a full and final release with respect to the same subject matter of the Application, and that to proceed with hearing the Application would amount to an abuse of the Tribunal's process.

It appears that the Application may be an abuse of process because the parties entered into minutes of settlement on or around July 10, 2014, which included a full and final release.

10The applicant filed written submissions in advance of the preliminary hearing. The hearing took place by teleconference on June 9, 2016.

ANALYSIS

11Rule A8.1 of the Social Justice Tribunals Ontario Common Rules 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.

12The Tribunal has held that the doctrine of abuse of process can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an Application to continue. The circumstances that can give rise to an abuse of process are not finite, and may include, but are not limited to, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of abuse of process is on the integrity of the administrative justice system. See Johnston v. P & H Foods Division of Parrish & Heimbecker, 2013 HRTO 589 at para. 8, and Campbell v. Toronto District School Board, 2008 HRTO 62 at paras. 35-37.

13The Tribunal has dismissed Applications as an abuse of process where an applicant has entered into a settlement resolving his or her outstanding employment issues. In Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, the Tribunal explained at para. 39:

When two parties contract to settle legal matters between them, the principle of finality demands that the contract be given effect and prevents parties from litigating settled matters, unless there are compelling reasons to set the contract aside altogether.

14In his submissions, the applicant stated that his new Application is not an abuse of process because he found out after signing the Minutes of Settlement and Release that the real reason that the respondents wanted to terminate his employment was because he had filed a human rights Application against them. In essence, his argument was that the Minutes of Settlement and Release should be set aside because the respondents committed an act of fraudulent misrepresentation during the settlement process. He stated that he had a letter proving the act of fraudulent misrepresentation, but he had not filed it with the Tribunal because it was in relation to long term disability benefits and was privileged. I asked the applicant several times to explain more clearly why he had not filed the letter prior to the hearing, but he did not provide an answer. Instead, he stated that he could provide it to the Tribunal upon request. I informed the applicant that he should have filed the letter prior to the hearing, and informed him that I was planning to issue a Decision soon after the hearing. Despite the fact that I did not prohibit him from filing the letter following hearing, he has still not filed it more than a week later.

15I disagree with the applicant's submissions. Minutes of Settlement are contracts, and, as such, the same principles of contract interpretation apply. See Precision Remodeling Ltd. v. Soskin, 2008 CanLII 31411 (ON SC) at para. 27. The primary goal of contractual interpretation is to give effect to the intentions of the parties. See Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 CanLII 10 (SCC), [1980] 1 S.C.R. 888 at p. 901.

16The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, and it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face. Unless there is ambiguity in the wording of the document, extrinsic evidence regarding the subjective intentions of the parties is inadmissible pursuant to the parol evidence rule. See Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129 at paras. 54, 55 and 58.

17As the Ontario Court of Appeal explained in Dumbrell v. The Regional Group of Companies Inc., 85 OR (3d) 616, 2007 ONCA 59 at para. 50:

In my view, when interpreting written contracts, at least in the context of commercial relationships, it is not helpful to frame the analysis in terms of the subjective intention of the parties at the time the contract was drawn. This is so for at least two reasons. First, emphasis on subjective intention denudes the contractual arrangement of the certainty that reducing an arrangement to writing was intended to achieve. This is particularly important where, as is often the case, strangers to the contract must rely on its terms. They have no way of discerning the actual intention of the parties, but must rely on the intent expressed in the written words. Second, many contractual disputes involve issues on which there is no common subjective intention between the parties. Quite simply, the answer to what the parties intended at the time they entered into the contract will often be that they never gave it a moment's thought until it became a problem: see Kim Lewison, The Interpretation of Contracts, 3rd ed. (London: Sweet & Maxwell, 2004) at 18-31.

18Regardless of ambiguity, however, courts may have regard to the context or the factual matrix in order to determine the intent of the parties and the scope of their understanding (i.e. contracts are to be interpreted with regard to objective evidence of the context or factual matrix underlying the negotiation of the contract, but without reference to the subjective intention of the parties). See Dunn v. Chubb Insurance Company of Canada, 2009 ONCA 538 at paras. 33-34.

19This Tribunal has adopted the above approach in the context of the settlement of human rights disputes. See Thornton v. Toronto Police Services Board, 2012 HRTO 2412 at paras. 13-14; Ihasz v. Ontario (Revenue), 2011 HRTO 1991 at para. 21; and Moncur v. Beach Grove Golf and Country Club, 2014 HRTO 764 at paras. 18-22.

20In my view, the Minutes of Settlement and Release are clear and unambiguous on their face. As such, extrinsic evidence regarding the subjective intentions of the parties is inadmissible pursuant to the parol evidence rule. The reality is that, although the parties agreed that the applicant's employment was terminated and the respondents would issue a Record of Employment indicating that he was unable to perform current modified duties without pain or difficulty, the parties, as in many cases, likely did not have common subjective intention in agreeing to these provisions. Therefore, the applicant's extrinsic evidence about the "real" reason that the respondents wanted to terminate his employment is inadmissible.

21In the Minutes of Settlement and Release, the parties clearly and unambiguously agreed that the applicant's employment was terminated, the respondents would pay the applicant monetary compensation in the form of termination pay and general damages, the respondents would also provide the applicant with certain non-monetary remedies, and the applicant released and forever discharged the respondents from all legal actions, including any claim under the Code, which he had or may have in the future relating to his employment, including the cessation of his employment. Therefore, I find that the applicant's filing of a new Application, which alleges that the respondents terminated his employment as a reprisal for filing a human rights Application, is barred by the Minutes of Settlement and Release.

22Alternatively, even if extrinsic evidence is admissible to prove that the respondents committed an act of fraudulent misrepresentation during the settlement process, the applicant failed to produce the letter that allegedly shows this. In the absence of such evidence, I cannot find that the Minutes of Settlement and Release should be set aside based on the doctrine of fraudulent misrepresentation.

23In his submissions, the applicant also alleged that he was under financial pressure, had depression, and did not understand the significance of the Release when he signed it. In response to questions from the Tribunal, he did not provide any further details. It was also unclear whether he was requesting that the Minutes of Settlement and Release be set aside for these reasons. Nonetheless, I will consider whether the Minutes of Settlement and Release should be set aside for these reasons.

24In Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ON SC), the Divisional Court set out at para. 17 some of the relevant factors to consider 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.

25In Kailani v. Securitas Canada, 2009 HRTO 1183, with respect to economic duress, the Tribunal stated at para. 35:

Each case must be considered on its own merits and economic duress is a factor that may be considered. However, it seems apparent that the test for economic duress is high. Most people who have had their employment terminated are faced with economic difficulty. Financial difficulty alone cannot therefore be sufficient. If it were, almost every settlement arising out of the termination of employment could be violated.

26In my view, the Minutes of Settlement and Release cannot be set aside based on the reasons provided by the applicant. He may have been under financial pressure, as most people in his situation would have been, but there is insufficient evidence to conclude that it reached the threshold whereby he had no choice but to sign the Minutes of Settlement and Release. He also may have been experiencing depression, but there is insufficient evidence to conclude that it reached the threshold where he did not have the capacity to sign the Minutes of Settlement and Release. Finally, given that he consulted with legal counsel prior to signing the Minutes of Settlement and Release, and then signed them, knowing that there were provisions confirming that he had sought and received independent legal advice, and signed the Minutes of Settlement and Release freely, voluntarily and without duress, I do not accept that he did not understand the significance of what he was signing.

27In conclusion, I find that this new Application is an attempt to re-litigate the settlement of Code-related employment issues between the applicant and the respondents, and is therefore an abuse of process.

ORDER

28The Application is dismissed.