) ) MIRIAM SENIOR Applicant – v. –, 2017 ONSC 3928

CITATION : Senior v. City of Toronto, 2017 ONSC 3928 DIVISIONAL COURT FILE NO.: 124/16 DATE: 20170628 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MARROCCO A.C.J.S.C., KITELEY & WILTON-SIEGEL JJ. BETWEEN: ) ) MIRIAM SENIOR Applicant – and – CITY OF TORONTO, CALEYWRAY, CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79, and HUMAN RIGHTS TRIBUNAL OF ONTARIO Respondents ) ) ) ) ) ) ) ) )))))) Osborne G. Barnwell , for the Applicant Ian Solomon , for the City of Toronto Douglas J.

Wray , for CaleyWray and the Canadian Union of Public Employees, Local 79 Sabrina Fiacco , for the Human Rights Tribunal of Ontario ) ) ) HEARD AT TORONTO: May 15, 2017 MARROCCO A.C.J.S.C.

Background [ 1 ] The applicant moves to judicially review and quash a decision of a Human Rights Tribunal of Ontario Adjudicator (the Adjudicator) dated January 29, 2016. [ 2 ] The Adjudicator decided that the applicant’s complaint to the Human Rights Tribunal of Ontario should be dismissed against the City of Toronto as an abuse of process. [ 3 ] The Adjudicator also decided that the applicant’s complaint against the law firm CaleyWray and the Canadian Union of Public Employees, Local 79 should be dismissed because there was no reasonable prospect that it could succeed. [ 4 ] The parties agree that the standard of review for decisions of the Human Rights Tribunal of Ontario is reasonableness.

The applicant submitted however, at paragraph 19 of its factum, that, in determining whether there was a settlement agreement that should be enforced or whether duress was present, the Adjudicator’s reasons should “be interpreted in a manner that is consistent with judicial consideration of settlements and the meaning of duress as established by the courts.” [ 5 ] In my view whether the standard of review is reasonableness or correctness this application should be dismissed. [ 6 ] As a preliminary matter, the respondent City of Toronto is incorrectly named in this application.

Accordingly, the style of cause is amended to provide that the respondent is the City of Toronto and not the City of Toronto Bendale Acres Long Term Care Homes & Services. [ 7 ] The respondent Human Rights Tribunal of Ontario is incorrectly named in this application. Accordingly the style of cause is

also amended to correctly reflect the name of this tribunal. [ 8 ] The applicant was fired by the City of Toronto. She had been employed as a Practical Care Aide at Bendale Acres, a long term care home operated by the City of Toronto. The applicant filed a grievance, which was taken up by the Canadian Union of Public Employees, Local 79, and which proceeded to a hearing.

At the same time the applicant also made a complaint to the Human Rights Tribunal of Ontario about the circumstances leading to her dismissal. [ 9 ] The Human Rights Tribunal of Ontario decided that there was an overlap between the subject matter of the grievance and the applicant’s complaint and deferred consideration of the applicant’s complaint until the resolution of the grievance. [ 10 ] The Human Rights Tribunal of Ontario generally defers consideration of a complaint where there is an ongoing grievance based on the same facts and human rights issues under a collective agreement.

The Tribunal does this because the Supreme Court of Canada has affirmed that grievance arbitrators have the responsibility to implement and enforce rights and obligations set out in human rights statutes as if they were part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 , 2003 SCC 42 , [2003] 2 S.C.R. 157. [ 11 ] On the date set for the grievance hearing, the applicant and the City of Toronto reached a settlement.

Specifically, the City of Toronto agreed to rescind the applicant’s termination and accept her retirement from the City of Toronto workforce. In addition, the City of Toronto would pay the applicant $78,500, which would include $5000 as human rights damages. [ 12 ] The Minutes of Settlement signed by the parties expressly resolved all claims against the City of Toronto by the applicant regarding her employment and termination, including the Human Rights Tribunal of Ontario complaint.

Pursuant to the Minutes of Settlement, the applicant signed a Human Rights Tribunal of Ontario Confirmation of Settlement form (Form 25), which confirmed to the Human Rights Tribunal of Ontario that the applicant had signed minutes of settlement that resolved her Human Rights Tribunal of Ontario complaint. [ 13 ] When the Human Rights Tribunal of Ontario received the executed Form 25, it closed its file with the following endorsement: “Given the parties’ agreement, the Application is finally disposed of as settled.

As a result, the HRTO’s file has been closed.” [ 14 ] Approximately three months later, after receiving, pursuant to the Minutes of Settlement, the cheque in the net amount of $51,390 from the City of Toronto, the applicant filed a new Human Rights Tribunal of Ontario complaint. The allegations against the City of Toronto and its employees were the same as the allegations in the original complaint, even though those allegations had been resolved pursuant to the Minutes of Settlement. The new complaint added allegations against the Canadian Union of Public Employees, Local 79 and its counsel, CaleyWray.

Subsequent to filing the new complaint the applicant cashed the settlement cheque received from the City of Toronto on the advice of her counsel. [ 15 ] After the Human Rights Tribunal of Ontario received the new complaint, it issued a Case Assessment Direction requiring a preliminary hearing to determine whether the new complaint should be dismissed. [ 16 ] The preliminary hearing was held by teleconference on January 21, 2016. Following the hearing, the Adjudicator dismissed the new complaint.

Decision of the Adjudicator [ 17 ] During the preliminary hearing teleconference, counsel for the applicant conceded that there was no discrimination complaint against the Canadian Union of Public Employees, Local 79 or its counsel, CaleyWray.

Accordingly, the Adjudicator dismissed the new complaint as against the Canadian Union of Public Employees, Local 79 and CaleyWray on the basis that there was no reasonable prospect that this complaint could succeed. [ 18 ] The adjudicator relied upon the applicant’s settlement with the City of Toronto to conclude that the applicant’s new complaint against the City of Toronto was an abuse of process. Jurisdiction and Standard of Review [ 19 ] The Court of Appeal has confirmed that a decision of the Tribunal is subject to judicial review: Shaw v.

Phipps , 2012 ONCA 155 , 347 D.L.R. (4th) 616, at para. 10 . [ 20 ] The Applicant at first submits that the Tribunal’s decision, including on the issue of whether the Applicant was subject to duress when she entered into the settlement, is reviewable on a standard of reasonableness.

However, the Applicant goes on to argue that because the issues of “settlements” and “duress” fall “outside the human rights domain” and outside of the Tribunal’s specialized expertise, the Tribunal’s decision on the issue of duress may be entitled to less deference. [ 21 ] The Tribunal submits that its decision should be reviewed on a standard of reasonableness. The decision being challenged concerns the Tribunal’s factual findings and its

interpretation and application of human rights law, issues which the Court of Appeal has held are subject to review on a standard of reasonableness with a high degree of deference relying on Shaw v. Phipps . [ 22 ] The City and Local 79 and CaleyWray also submit that the applicable standard of review of the Tribunal’s decision here is reasonableness. These parties also rely in part on Shaw v. Phipps . [ 23 ] I agree that the standard of review is reasonableness. However, the Tribunal is obliged to apply the correct principles of law concerning duress and the binding nature of settlements.

[24] In Baker v.

Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, , at para. 27 one of thefactors used to determine the content of procedural fairness requires respect for the choices of procedure made by the administrativedecision maker, “particularly when the statute leaves to the decision maker the ability to choose its own procedures, or when the agencyhas an expertise in determining what procedures are appropriate in the circumstances…” Analysis [25] Given the applicant’s concession, the Adjudicator’s decision that a complaint against Canadian Union of Public Employees,Local 79 and its law firm CaleyWray could not succeed, was not only reasonable but also correct.

Therefore, this application in so far asthat decision is concerned is dismissed. [26] The Minutes of Settlement include the following: The Grievor acknowledges that these Minutes of Settlement constitute a full and final settlement of any and all grievances, including [thegrievances,] complaints, claims, actions or applications that the Grievor currently has or might have against the City and any of itsofficials, managers, supervisors and employees concerning her employment with the City and the cessation of that Employment,including, but not limited to the Ontario Human Rights Code [sic]…. [Underlining added.] [27] In short, the language of the Minutes of Settlement is clear – namely, the applicant’s first human rights complaint against theCity of Toronto was settled. [28] The applicant’s factum at paragraph 11 sets out the reasons which were advanced by the applicant before the Adjudicator fornot enforcing the settlement.

These reasons were repeated before this Court: • The Canadian Union of Public Employees, Local 79 and its counsel gave the applicant approximately 270 pages of documents toread on the day before the grievance hearing and as a result the applicant did not have sufficient time to read and understand thosedocuments. • The Canadian Union of Public Employees, Local 79 and its counsel coerced the applicant into signing the Minutes of Settlement, aRelease and the Form 25. • The Canadian Union of Public Employees, Local 79’s representative and its counsel presented the applicant with a $100,000 offerto settle.

However, when the applicant attempted to accept the offer, she was told by the union’s representative and its counsel that theoffer had been withdrawn and that the only offer available was for $78,500. • After the applicant told the Canadian Union of Public Employees, Local 79’s representative and its counsel that she would notaccept the $78,500 offer, they told her that this offer was the best they could do. • The Canadian Union of Public Employees, Local 79’s representative and its counsel told her that the human rights complaintprocess would not produce a better result. • The Canadian Union of Public Employees, Local 79’s representative and its counsel refused to give the applicant time to thinkabout the offer and told her that it was “now or never,” which made the applicant feel pressured and frustrated. • Counsel for the union shouted at her and advised her to call a friend, which she did.

While the applicant was talking to her friend,counsel for the union took the phone and started talking to the friend and became visibly upset. • Counsel for the union was rude to her and her friend. • Counsel for the union indicated that if the applicant went to the Human Rights Tribunal of Ontario, he would have persons testifyagainst her position and that the Tribunal would ultimately refuse her case. • The applicant was left alone in a room for two to three hours without any visits from anyone and that she finally signed the releasebecause she was tired, emotionally drained and frustrated, and wanted to go home to take medications. [29] In short, these complaints raise duress based on allegations of (1) the conduct of the Canadian Union of Public Employees,Local 79’s representative and its counsel who attended the grievance hearing to assist her and (2) an absence of an intention on theapplicant’s part to enter into the settlement documentation. [30] There is no suggestion that the City of Toronto was privy to any of this. [31] Accordingly, there is no reason why the Minutes of Settlement, the Release and the Form 25 should not be enforceable by theCity of Toronto: Wilgross Investments Ltd. v.

Goldshalger (1974), (ON SC), 5 O.R. (2d) 687, 51 D.L.R. (3d) 343 (Div.Ct.). [32] The Court was advised during argument that the applicant’s complaints about the conduct of the Canadian Union of PublicEmployees, Local 79’s representative and its counsel could have been the subject of a complaint to, and could have resulted in anappropriate remedy from, the Ontario Labour Relations Board pursuant to s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1,Sched. A, which provides as follows: 74.

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not actin a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit….

[ 33 ] Indeed, it appears that the applicant’s complaint, which is, in essence, that her union failed to discharge its obligation to her and that this resulted in her signing the Minutes of Settlement, Release and Form 25 is a matter within the exclusive jurisdiction of the Ontario Labour Relations Board. [ 34 ] In any event, it is clear that the new complaint against the City of Toronto is identical to the first complaint. As a result, the Adjudicator’s finding that the enforceable settlement disposed of the new complaint is not only reasonable but also correct.

Further, there is no reason why the City of Toronto, which has complied with the Minutes of Settlement, should not be entitled to rely upon the Minutes, the Release and the Form 25.

In this regard counsel for the applicant confirmed during the hearing that the applicant, if successful in this application, is not able to refund the $51,390 to the City of Toronto. [ 35 ] The applicant also claims that the Adjudicator made findings of credibility in dismissing the applicant’s two allegations that were unreasonable in the circumstances. [ 36 ] I do not accept this argument. [ 37 ] In paragraph 14 of his reasons, the Adjudicator indicates that he is not “satisfied that the applicant did not understand what she was signing.” The Adjudicator based this finding on language in the Minutes of Settlement and the Release as well as that portion of the narrative of the applicant’s complaint to the Human Rights Tribunal of Ontario that described the negotiations concerning the applicant’s compensation under the settlement.

The Adjudicator found that the applicant’s conduct, as described in the applicant’s narrative, was consistent with her understanding the documents. On this basis, the Adjudicator could reasonably find that the applicant intended to enter into the settlement documentation. [ 38 ] The closest that the Adjudicator came to a finding of credibility is his statement in paragraph 15 as follows: “I am not prepared to accept that the applicant actually believed that she could not leave the meeting without signing the documents.” This finding pertains to the applicant’s allegation of duress.

This finding, however, was based upon the fact that the applicant did not indicate to either her union representative or the friend with whom she spoke on the telephone that she felt that she was being held against her will or that she felt that she was being forced to sign the settlement documents. [ 39 ] The Adjudicator was not satisfied that the applicant felt pressured into signing the documents because the applicant attended the meeting with her union representative and had, prior to signing the documents, telephone discussions about the advisability of signing them with a friend, who had copies of them. [ 40 ] The applicant apparently claimed during the teleconference that she signed the documents in part because she was experiencing ongoing financial pressures and at a time when she was experiencing emotional distress due to the death of her son.

In this regard, the Adjudicator concluded at paragraph 16: “In my view, even accepting the applicant’s position at face value, the circumstances of this case do not qualify as duress, in that the applicant has not satisfied me that her need was so serious that she had no other option but to sign the documents.” [ 41 ] In short, the Adjudicator’s decision concerning duress resulting from financial pressures or emotional distress was based on his acceptance of the applicant’s description of her circumstances, an application of the correct principles of the law of duress and the binding nature of settlements and not on a finding of credibility based on a teleconference. [ 42 ] The applicant objects to the fact that the preliminary hearing was conducted by teleconference.

Section 40 of the Ontario Human Rights Code , R.S.O. 1990, c. H.19 provides that the Human Rights Tribunal of Ontario shall dispose of applications of the type filed by the applicant in this case “by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.” Human Rights Tribunal of Ontario Rule of Procedure 3.5 provides in part that the Tribunal may conduct hearings by telephone.

Therefore, there was nothing procedurally unfair in the decision to conduct the preliminary hearing by teleconference. There was also nothing procedurally unfair in the Adjudicator making a decision about the applicant’s complaint on the basis of the documentation submitted to him. [ 43 ] Accordingly, this application for judicial review is dismissed with costs. The applicant will pay costs of $1500 inclusive of disbursements and HST to the Canadian Union of Public Employees, Local 79 and $2500 inclusive of disbursements and HST to the City of Toronto. ___________________________ MARROCCO A.C.J.S.C.

I agree: ___________________________ KITELEY J. I agree: ___________________________ WILTON-SIEGEL J. Released: 20170628

CITATION : Senior v. City of Toronto, 2017 ONSC 3928 DIVISIONAL COURT FILE NO.: 124/16 DATE: 20170628 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MARROCCO A.C.J.S.C., KITELEY & WILTON-SIEGEL JJ. BETWEEN: MIRIAM SENIOR Applicant – and – CITY OF TORONTO, CALEYWRAY, CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79, and HUMAN RIGHTS TRIBUNAL OF ONTARIO Respondents REASONS FOR JUDGMENT Released: 20170628