Virgin v. Dollar, 2009 HRTO 899

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Virgin

Applicant

-and-

Brian Dollar

Respondent

deciSION

Adjudicator: Jay Sengupta

Date: June 22, 2009

Citation: 2009 HRTO 899

Indexed as: Virgin v. Dollar

SUBMISSIONS BY:

Ronald Virgin, Applicant ) On His Own Behalf

Brian Dollar, Respondent ) Robert Weir and Kate Zavitz, Counsel

1This is an Application to the Tribunal filed on November 4, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that he has suffered discrimination in the area of employment on the basis of disability.

2As the information in the Application indicated that there was an ongoing grievance concerning some of the matters before the Tribunal, the Tribunal served the union, United Food and Commercial Workers Canada, Local 1000A, which had been identified as an affected party. The union has sent correspondence to the Tribunal through counsel indicating it does not intend to participate in the proceedings.

3The respondent filed a Response in which he made a request for dismissal based on s. 45.1 of the Code. Specifically, the respondent has requested that the Application be dismissed because another proceeding has dealt with the substance of the matters before the Tribunal. The respondent refers in particular to Minutes of Settlement signed by the parties pursuant to a grievance procedure held under the terms of the Collective Agreement governing the workplace in question.

4A copy of the grievance form relating to grievance number 2009LM0392, dated July 15, 2008, has been provided to the Tribunal. It states, in part, that the employee grieves:

that the employer has violated and is in breach of their “Duty to Accommodate” in accordance with the Collective Agreement, other pertinent articles, the Human Rights Code and any and all pertinent legislation in Ontario.

5A copy of the Minutes of Settlement, dated December 23, 2008, and signed by the applicant, a union representative and the respondent, arising out of the grievance process relating to the same grievance has also been provided to the Tribunal. The Minutes confirm that the document constitutes a full and final settlement of the matters in relation to the grievance. The Minutes include an agreement to withdraw the grievance and acknowledges the inability of the employer to accommodate the grievor without undue hardship. Finally, the Minutes indicate that the grievor is to be paid a monetary sum in exchange for a waiver and release that covers the company and all its officers and directors, of whom the respondent is one. The Minutes also contain an agreement that the grievor will not commence any other legal proceedings against the employer company and/or its employees related to the issues raised in the grievance and dealt with in the Minutes.

6The applicant indicated in his Reply that he was under extreme emotional and financial stress when he signed the Minutes of Settlement but provided no further detail.

7In a previous Interim Decision, Virgin v. Dollar, 2009 HRTO 416, the Tribunal ordered that a conference call be held to allow the parties an opportunity to make submissions on the respondent’s request that the Application be dismissed pursuant to s. 45.1 of the Code. The Interim Decision called on the parties to deliver any additional documents or case law that they wanted the Tribunal to consider to each other and submit it to the Tribunal 14 days prior to the teleconference.

8At the outset of the conference call, the Tribunal forwarded a copy of a two page document provided by the applicant to the Tribunal but not sent to the respondent to counsel for the respondent. The respondent was content to proceed under these circumstances.

DECISION

9Having considered the arguments raised and reviewed the documents and case law provided to me by the parties, the respondent’s request for dismissal of the Application is granted for the following reasons.

ANALYSIS

10Section 45.1 of the Code reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

11The following principles contained in Campbell v. Toronto District School Board, 2008 HRTO 62, apply to the interpretation of s. 45.1.

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;

• The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;

• In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;

• The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

12These principles were considered in Dunn v. City of Sault Ste. Marie (City), 2008 HRTO 149, in which the Tribunal goes on to point out that, with respect to settlements between parties:

(… ) there is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end. This is a fundamental principle that should guide the Tribunal in the interpretation of s. 45.1, because to do otherwise could make the finality of settlements highly uncertain.

13The respondent argues that the parties to the grievance procedure should be entitled to rely on the Minutes of Settlement signed by the parties as a final resolution of the human rights issues that are now being brought before the Tribunal by the applicant and relies on the Tribunal’s decision in Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448, for support for the proposition that a union grievance may be a “proceeding” within the meaning of s. 45.1 of the Code.

14Counsel for the respondent points out that the grievance form made reference to the employer’s failure to accommodate and the Code, the same issues that are the subject matter of this Application, that the applicant was represented by his union throughout the grievance process, that three parties signed the Minutes of Settlement, that the applicant received a monetary payment pursuant to the Minutes of Settlement.

15He argues that while there may be instances where Code related reasons exist to set aside such settlements, no evidence of such reasons exist in this case, Ababio v. Humber River Regional Hospital, 2009 HRTO 286, and that while it is entirely reasonable that the applicant may have been feeling emotional and financial pressures at the time the Minutes of Settlement were signed, there is no evidence to suggest that he was unable to understand or appreciate what he was signing or that he was under duress.

16Finally, counsel for the respondent argues that it would be an abuse of process to permit this Application to proceed see: Dube v. Rockhaven Recovery, 2009 HRTO 53; James v. Evonik Degussa Canada, 2009 HRTO 555.

17The applicant submits that at the time that he filed the human rights Application in November, 2008, he had consulted with the Human Rights Legal Support Centre and understood that both processes could proceed concurrently, although one may have to be deferred.

18He points out that he was not welcome to remain in the room during the grievance proceeding. Finally, he argues that he was under a great deal of stress, both financial and emotional, at the time of signing the Minutes.

19There is no suggestion by the applicant that the issues dealt with under the grievance procedure were different in any respect from the matters raised by him in this Application.

20I am satisfied the applicant sought and received information about proceeding with the two matters in tandem and that he received that information or advice in advance of the settlement of the grievance.

21The applicant acknowledges that he was represented by his union during the grievance process and he had the opportunity to consult with the union throughout the process. Although there were elements of the process that he found unfair, they do not amount to duress as he states that he understood that he was settling his grievance by signing Minutes of Settlement. He did not dispute the payment of a monetary sum to him as a result of the Minutes of Settlement.

22While the applicant may have experienced emotional and financial distress, that, in and of itself, does not constitute sufficient reason to look behind the terms of the Minutes of Settlement. There is no nexus between the reasons he presents for settling his grievance and his disability.

23The release contained in the Minutes of Settlement clearly encompasses current and future litigation regarding the issues raised in both the grievance and the Application and includes the respondent.

24As the substance of the matter before the Tribunal has been appropriately dealt with by another proceeding, the Application is dismissed.