HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Daniel Pennarun
Applicant
-and-
Fiat Chrysler Canada Inc. and Rob Gardiner
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Pennarun v. Fiat Chrysler Canada Inc.
APPEARANCES
Daniel Pennarun, Applicant Self-represented
Unifor Canada, Local 1285, Leon Rideout and Ardis Snow, Respondents Niki Lundquist, Counsel
Fiat Chrysler Canada Inc., and Rob Gardener, Respondents No one appearing
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment and to membership in a vocational association because of disability.
Background
2The Application was deferred pending the conclusion of related grievances. See 2015 HRTO 1443 and 2016 HRTO 754. In 2016 HRTO 754, the Tribunal dealt with the applicant’s request to reactivate the Application in light of the resolution of the related policy grievance. The Tribunal declined to reactivate the Application because an individual grievance (the “grievance”), addressing the same issues, remained outstanding.
3On November 7, 2016, the applicant filed a Request for an Order During Proceedings in which he again sought reactivation of the Application and to remove Unifor Canada 1285 (the “union”), Leon Rideout, and Ardis Snow (the “union respondents”) as respondents to the Application (the “First Request”).On November 9, 2016, the union respondents filed a Response to a Request for Order in which they supported the request to withdraw as against them. In light of the request to withdraw, the union respondents took no position regarding the reactivation request, but confirmed that the grievance had been withdrawn. By e-mail message dated November 15, 2016, the applicant requested that he be permitted to “withdraw his request to remove the union respondents from the Application” (the “Second Request”). On November 21, 2016, the union respondents filed a Response to a Request for an Order opposing the Second Request. The union respondents submitted that the applicant asked the union to withdraw the outstanding individual grievance in order to facilitate the reactivation of the Application. The union agreed, but the consideration for withdrawing the grievance was the withdrawal of the Application as against the union respondents. The applicant agreed. The union respondents executed their part of the bargain and submitted that the applicant should not be permitted to resile from their agreement.
4Following a conference call to address the issue, the Tribunal issued the following direction in a Case Assessment Direction, dated January 12, 2017:
Based upon this recitation, the Tribunal finds that it is appropriate to schedule a full day in-person preliminary hearing on:
whether or not the applicant’s grievance was withdrawn and the date of the withdrawal;
whether there was an agreement (or settlement) between the applicant and the union respondents, orally or in writing, that in exchange for the union respondents withdrawing his grievance, the applicant would withdraw the union respondents as respondents in his Application; and
if there was an oral or written agreement (or settlement) between the applicant and the union respondents, whether it would be inequitable or an abuse of process to permit the applicant to withdraw or resile from the oral or written agreement.
The hearing
5The Tribunal held the preliminary hearing on July 28, 2017, in person. The applicant testified and Ardis Snow, the Union Chairperson for the Brampton Assembly Plant, testified on behalf of the union respondents. Both witnesses filed detailed witness statements. The witnesses were affirmed and they adopted their witness statements as their evidence, but also gave oral testimony.
Evidence
Undisputed Facts
6The following facts are not in dispute. On June 21, 2016, the applicant asked Mr. Snow to withdraw the grievance. Mr. Snow agreed, and, after receiving the request in writing, he drafted a letter confirming that the grievance withdrawn, Exhibit 1. The letter was misdated June 22, 2015. The applicant noticed this error and asked Mr. Snow to correct it before sending it to the Tribunal to support a reactivation request. Despite the contents of Exhibit 1, the grievance had not in fact been withdrawn. The union reconsidered its position and required the applicant to withdraw the Application as against the union respondents in exchange for withdrawing the grievance. The union presented Exhibit 2 to the applicant, which was a draft agreement indicating that the union agreed to withdraw the grievance in exchange for the applicant’s agreement not to make the union a party to the Application. Ultimately, the parties did not execute the agreement and the union did not withdraw the grievance. There was a pause in discussions because the applicant and Mr. Snow waited to see if the applicant’s grievance would be addressed in upcoming negotiations for a new collective agreement. The grievance went unresolved.
Respondents’ Evidence
7Mr. Snow’s evidence was that it was clear the union would withdraw the grievance only if the applicant withdrew this Application as against the union. The applicant understood that he needed to have the grievance withdrawn in order to get his Application reactivated.
8Following collective bargaining, the applicant and union resumed their discussions. Mr. Snow’s evidence was that the applicant asked for another copy of the draft agreement on November 1, 2016, and stated that he would deliver a signed copy by November 3, 2016. When the applicant did not produce a signed agreement, Mr. Snow tried to call him and left messages for the application to contact him. On November 9, 2016, the applicant filed the First Request and the union considered this to be sufficient for it to withdraw the grievance; therefore, it filed the response to the First Request on November 9, 2016, in which it confirmed the grievance had been withdrawn. Mr. Snow stated that this confirmation was somewhat premature because the union intended to withdraw the grievance, but had not yet done so.
9Mr. Snow’s evidence was that the applicant called him at 9:45 a.m. on November 9, 2016, and advised Mr. Snow that he had requested that the Application be withdrawn as against the union respondents. The applicant asked Mr. Snow to withdraw the grievance and Mr. Snow agreed to do so. Mr. Snow withdrew the grievance at 1:41 p.m. that day. Mr. Snow stated that the union’s decision to withdraw the grievance was contingent upon the applicant’s agreement to withdraw the Application as against it.
The Applicant’s Evidence
10The applicant testified that he understood that he had to withdraw the Application as against the union to have the Application reactivated. Following his discussions with Mr. Snow in June 2016, he decided to wait to see if his grievance would be addressed in collective bargaining. As noted above, the grievance was not resolved. The applicant’s evidence was that he received advice that he should seek reactivation of the Application and submit the original grievance withdrawal letter and a revised, unsigned, draft. The applicant was also advised that he withdraw the Application as against the union, since the company was the main respondent. The applicant spoke with Mr. Snow on November 9, 2016, and advised him that he had filed the First Request to reactivate the Application and remove the union respondents from the Application. The applicant was later advised that it was not necessary to remove the union and he should not have done so. The applicant contacted the Tribunal to see if he could “cancel” the request to remove the union. He was advised that he could because the Tribunal had not yet dealt with the First Request. Accordingly, he re-sent his request seeking reactivation of the Application with a request to not remove the union as a party. The applicant stated that the decision to request removal of the union had nothing to do with agreeing to sign the agreement the union proposed, which he never did.
11In cross-examination, the applicant initially denied that he asked Mr. Snow to withdraw the grievance when they spoke on November 9, 2016. When asked how withdrawing as against the union would further his request to reactivate, the applicant stated that he did not understand that the grievance had to be concluded in order to reactivate the Application. Rather he understood, based on advice he received, the Application could be reactivated if the union was removed as a party. He agreed that he knew the grievance remained active, i.e., was not withdrawn, when he filed the First Request.
12When it was again put to the applicant that he called Mr. Snow to advise him of the withdrawal as against the union and to ask him to withdraw the grievance. The applicant stated that he did not recall asking Mr. Snow to withdraw the grievance. The applicant did not think it was possible because he had not signed the agreement with the union.
Analysis and Decision
13Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended states:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
14The Social Justice Tribunals Common Rules of Procedure provide as follows:
A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
15In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
16The observations on credibility assessment made in R. v. Taylor, 2010 ONCJ 396, are also noteworthy, as follows (at paragraphs 58 to 60):
“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.
All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey 1995 CanLII 3498 (ON CA), 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193, at 205:
Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.
17The union respondents submitted that a written agreement is not necessary to have a binding contract. See Allergan Inc. v. Apotex, 2015 FC 367; Andrews v. Lundrigan, 2009 ONCA 160; Godbout v. Treasury Board, 2016 PSLREB 5; and Smith v. Peel Regional Police Services Board, 2010 HRTO 905. In Smith, the Tribunal summarized the relevant principles as follows, at paragraph 30:
The law is clear that a binding agreement can exist when the parties agree on all of the essential terms to be incorporated into a formal document with the intention that their agreement shall become binding. The fact that a formal written document is not signed does not alter the binding nature of the original contract. However, when the original contract is incomplete because the essential terms have not been agreed upon; or the contract is too general to be valid and is dependent on the making of a formal contract; or the understanding or intention of the parties is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original agreement cannot constitute an enforceable contract. In these circumstances, the “execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself.” See Bawitko Investments Ltd. v. Kernals Popcorn Ltd. (1991), 1991 CanLII 2734 (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.) at pp. 103-104; Andrews v. Lundrigan, 2009 ONCA 160.
Was There a Binding Agreement?
18On June 2, 2016, the Tribunal issued 2016 HRTO 754, an Interim Decision in which it denied the applicant’s request to reactivate the Application. At paragraph 6 of the Interim Decision, the Tribunal stated that the Application would remain deferred until the conclusion of the grievance/arbitration process as follows:
Given the parallel issues, the Application will continue to be deferred pending conclusion of the individual grievance or arbitration process. Specifically, this means until the individual grievance has been resolved, withdrawn, or concluded by the arbitration process. If the applicant believes, on conclusion of the grievance or arbitration process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.
Following this Interim Decision, the applicant sought to have the union withdraw the grievance in order that he could request reactivation of the grievance. The union initially agreed, but later rescinded its agreement. There is no dispute that the union required the withdrawal of the Application as against the union in exchange for withdrawing the grievance. The applicant and union did not come to an agreement and the issue was shelved until the completion of collective bargaining. I find that at this point the applicant had not reached an enforceable agreement.
19When the applicant’s grievance was not resolved during collective bargaining, the applicant filed the First Request. There is no dispute that the applicant called Mr. Snow on November 9, 2016 to inform him of the First Request. The applicant and union representatives dispute whether the applicant asked Mr. Snow to withdraw the grievance during this conversation.
20I find Mr. Snow’s evidence to be more credible than the applicant’s. The Tribunal’s Interim Decision, 2016 HRTO 754, explicitly stated that the grievance had to be concluded before the Application would be reactivated. Shortly after the Interim Decision, the applicant asked the union to withdraw the grievance in order that he could proceed with the Application. The applicant’s evidence that he did not understand that the grievance had to be concluded before the Application could be reactivated is at odds with these facts and is not credible. I also note that the applicant submitted in the First Request that the grievance had been withdrawn, which he knew was not true. I find this false representation to the Tribunal to be troubling, and, of course, it undermines the applicant’s credibility. The applicant delivered the First Request to the union’s lawyer; therefore, there was no reason for the applicant to call Mr. Snow to inform him that he made the request. The union was already aware of it. The applicant knew that he needed the union to withdraw the grievance for his reactivation request to succeed. He also knew the union would not withdraw the grievance unless the applicant withdrew the Application as against the union. Mr. Snow’s evidence that the applicant called him to obtain the union’s agreement to withdraw the grievance in light of the request to remove the union respondents from the Application is entirely consistent with these circumstances. Mr. Snow’s evidence was consistent that the applicant asked him to withdraw the grievance on November 9, 2016. The applicant initially stated that he did not ask Mr. Snow to withdraw the grievance on November 9, 2016, but later in his testimony stated that he could not recall if he asked this of Mr. Snow. This inconsistency casts some doubt on the reliability of the applicant’s evidence. I would also note that the applicant did not re-send his request to reactivate the Application on November 15, 2016, as he testified. Rather, the Tribunal’s records show that he sent a one-sentence e-mail message asking to withdraw his request to remove the union respondents. The applicant’s inability to recall his own, easily verifiable, actions gives reason to doubt the reliability of his evidence.
21In these circumstances, I prefer Mr. Snow’s account of the conversation he had with the applicant on November 9, 2016. It follows from this finding that I also find that the applicant asked Mr. Snow to withdraw the grievance. The consideration the union had required for withdrawing the grievance was the withdrawal of the Application as against the union respondents. This was the essential (and only) term of the union’s offer. The applicant met this consideration when he requested the removal of the union respondents from the Application, which in view amounted to acceptance of the union’s proposal. I find that at this point the applicant and union had a binding agreement. The union relied on the applicant’s request to remove the union respondents and withdrew the grievance. Having induced the union to withdraw the grievance, i.e., the condition precedent for reactivating his Application, the applicant purported to withdraw the consideration he provided to obtain that concession. In my view, to allow the applicant to do so would be grossly unfair and would amount to an abuse of process. Consequently, the applicant shall not be permitted to resile from his agreement to remove the union respondents.
Reactivation
22In light of the withdrawal of the grievance, the request to reactivate the Application is granted. As the parties have indicated that they are willing to participate in mediation, the Application shall be returned to the Registrar for scheduling.
Order
23The Tribunal orders as follows:
The applicant’s request to withdraw or resile from his request to remove the union respondents is denied as an abuse of process;
The request to remove the union respondents is granted and the style of cause amended, accordingly; and
The request to reactivate the Application is granted.
Dated at Toronto, this 5th day of December, 2017.
“Signed by”
Douglas Sanderson
Vice-chair