Lydia Lemieux v. Guelph General Hospital, 2010 HRTO 1267

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lydia Lemieux

Applicant

-and-

Guelph General Hospital, Audrey Henderson, Annette Harrington and Kaye Snowe

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: June 3, 2010

Citation: 2010 HRTO 1267

Indexed as: Lemieux v. Guelph General Hospital

APPEARANCES BY

Lydia Lemieux, Applicant ) Yvette Lemieux, ) Representative

Guelph General Hospital, Audrey Henderson, ) Robert Salisbury, Annette Harrington and Kaye Snowe, ) Counsel Respondents )

Reasons for Decision

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) dated June 29, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on July 3, 2007.

2The purpose of this Interim Decision is to address a Request for Order during Proceeding (the “Request”) seeking the early dismissal of the Application pursuant to section 45.1 of the Code on the basis that the substance of the Application has been appropriately dealt with in an arbitration proceeding culminating in a settlement between the union and the employer. The applicant did not accept the settlement and it remains available to her. Subsequent to the arbitration hearing and settlement, the applicant filed an application pursuant to section 74 of the Labour Relations Act 1995, S.O. 1995, c.1, Sched. A, as amended, alleging a violation of the union’s duty of fair representation in accepting the settlement. That application was dismissed by the Ontario Labour Relations Board (the “Board”) in a decision, dated April 7, 2009.

3The parties, as directed by the Tribunal, provided their written submissions on the issue raised by the Request. At the outset of the hearing, I indicated to the parties that I had read their materials and requested that they address the question of whether or not it was appropriate to apply section 45.1 in the context of a settlement of an arbitration where the applicant/grievor does not accept the proposed settlement.

4The respondents offered two decisions which they stated spoke to the issue that I had raised. The respondents stated that both Manhas v. A.O. Smith Enterprises, 2010 HRTO 659 and Ababio v. Humber River Regional Hospital, 2009 HRTO 286 support the application of section 45.1 or, alternatively, abuse of process where the applicant/grievor does not consent.

5I have reviewed the parties’ submissions and the cases relied upon by the respondents and find that I cannot apply section 45.1 in these circumstances, nor is this Application an abuse of process.

6The decision in Ababio concerned a section 53(3) application and, pursuant to Rule 10, the Tribunal’s Rules of Procedure for Transitional Applications has no precedential value. Nonetheless, I do not take it as standing for the proposition advanced by the respondents. To be clear in my view the Tribunal in that case granted the early dismissal on the basis of delay and in considering that issue the Tribunal noted, amongst other things, that the applicant rather than filing the human rights complaint, engaged in other litigation with the parties over the identical issues. Moreover, as I read the decision there is no determination of the question of whether or not the applicant consented to the settlement of her grievance. It is merely noted that the applicant “claimed” that she had not consented. It does not in my view stand for the proposition that section 45.1 can be applied where the settlement relied upon was opposed by the grievor/applicant.

7The other decision relied upon, is also distinguishable. In Manhas, the Tribunal refused to dismiss pursuant to section 45.1 on the basis that the decision of the arbitrator had not appropriately dealt with the substance of the complaint because the specific human rights issues had not been raised in the arbitration hearing. However, the Tribunal did dismiss the application as an abuse of process because “there were no facts set out in this Application that were not put before the arbitrator and that there was a full inquiry into all the relevant facts.” The Tribunal concluded that to allow what would amount to the re-litigation of the factual issues decided by the arbitrator and that would constitute an abuse or process.

8Our circumstances are quite different. This grievance proceeding culminated in a settlement and not a determination by the arbitrator. If there had been a decision on the merits of the grievance, as I indicated to the parties, that would be an entirely different matter and depending on the outcome of the arbitration hearing the result here might be different.

9The respondents also rely on the decision of the Board and its discussion about the nature of the dispute at the mediation. The respondents state that the applicant is estopped from asserting facts contrary to those found by the Board. In some circumstances that may be the case, but not here. The issues as framed in the application before the Board was whether the union had failed in its duty to the grievor/applicant when it accepted the settlement. For this reason the decision of the Board makes no findings of fact that bear on the merits or the substance of the Application. The respondents rely upon the Board’s determination that, in the course of the mediation, the grievor/applicant dropped her claim to reinstatement and was prepared to place a value on withdrawing her human complaint. The respondents state that this is evidence that the substance of the Application has been settled.

10I do not agree. The issue before the Board was whether or not the grievor/applicant’s trade union had fairly represented her at the mediation. While appropriately part of the Board’s discussion, given the decision the Vice-chair had to make, the facts necessary to the Board’s decision are not findings of fact that could give rise to an estoppel in respect of the substance of this Application. The facts largely concern positions taken by the parties, as well as the grievor/applicant, at the mediation. They are facts related to the parties’ efforts to settle the case and nothing more. The Board makes it clear that, in its view, based on the information available to the union about the applicant’s circumstances, the union not only did not violate its obligation to the grievor/applicant, it made a good deal for her.

11There is no issue that a labour arbitration is a proceeding within the meaning of s. 45.1 and that the Tribunal has applied s. 45.1 where the proceeding resulted in a settlement rather than an adjudication. However, the Tribunal has not, to date, applied s. 45.1 where the union settled the grievance over the objection and without the consent of the grievor/applicant.

12The respondents state that the Tribunal has consistently concluded both that it will not take an overly technical approach to the application of section 45.1, and that it does not act as an appellate court from the decisions of other Tribunals. As a general statement of the law, I agree. However I am not persuaded that an applicant/grievor’s opposing the settlement of a prior proceeding is a mere technicality.

13The respondents state that the substance of the dispute at the mediation and at the Board was about the quantum that the applicant would be prepared to accept and whether the union settled for too little. The respondents submit that a “reconsideration” by this Tribunal of how much the applicant would have or should have accepted as a settlement of her grievance would constitute the gratuitous bifurcation or proliferation of proceedings contrary to the Tribunal’s articulated view of the purposes of s. 45.

14The respondents’ argument boils down to this. The collective agreement specifically identifies the provisions of the Code as protected rights under the collective agreement and subject to the grievance and arbitration procedure. It is beyond dispute that an arbitrator under the Labour Relations Act has the duty, indeed the obligation, to consider the Code in adjudicating those disputes. The union has the authority to enter into binding settlements on behalf of bargaining unit members and did so in this case. Finally, given the above and the fact that the agreement provided for a monetary payment in an amount that the applicant had identified as the value she placed on agreeing to withdrawal of her human rights complaint, the respondents state that this Application ought to be dismissed pursuant to section 45.1 of the Code.

15The Request to Dismiss is rejected at this stage. I can see no basis in the cases cited for coming to the conclusion urged on me by the respondents. Although not argued at the time, there are at least two decisions of the Tribunal which suggest another result. See: Pilon v. Cornwall (City), 2010 HRTO 680 and Humphries v. General Motors of Canada, 2010 HRTO 177.

16I agree that the substance of the grievance and the complaint underlying this Application are essentially indistinguishable. As I indicated earlier, had the arbitration concluded with a decision the result here likely would have been different. Equally, had the applicant accepted the settlement as urged by her union and the arbitrator, I would have likely granted the respondents’ Request. However, she did not.

17I also agree that the issue before the Board was whether or not the union had failed in its obligations to the grievor/applicant and essentially concluded that it had done a good job for her. But in the same way that I cannot have regard to an applicant’s refusing a good offer to settle at a mediation at the Tribunal, it seems to me that the fact that the applicant might have, or indeed, possibly should have accepted the deal offered to her is not a fact that can support the application of section 45.1.

18As a result I cannot conclude that the substance of the Application has been appropriately dealt with at all in the prior proceedings. As I read the cases relied upon by the respondents including Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the consent of the applicant is a requirement for the application of the section 45.1. It is important to recall that the settlement in Dunn was of a Board application, brought by the applicant raising the same allegations against the same party as in the human rights application. Most critically to the application of section 45.1 was the fact that the applicant accepted the settlement indicating an intention on his part to finally resolve the dispute as against his bargaining agent. In the Tribunal’s analysis of this fact situation there was no distinction between section 45.1 and the doctrine of abuse of process. In my view the Tribunal concluded that because the applicant had indicated a clear intention to resolve his human rights disputes with the respondent in the other proceeding it was an abuse of process to continue to process the application.

19The situation here is quite different. The applicant’s human rights complaint has not been adjudicated and the settlement that concluded the arbitration process was not accepted by the applicant. It is important to recall that the union had carriage of the grievance. The applicant is technically not a party to the arbitration and although the grievance alleges a violation of rights of the applicant, the legal reality is that a grievance is only partly about the rights of the individual grievor. The union as the statutory bargaining agent has obligations that transcend the individual members’ rights and may in some circumstances conflict with the individual rights of its members. The union, having carriage of the grievance can have regard to these collective interests in prosecuting the grievance, subject only to its statutory obligation to fairly represent the grievor. However, as the law stands now the duty to represent a grievor fairly allows the trade union to consider factors beyond the rights of the individual grievor.

20It seems to me an untenable proposition to conclude that section 45.1 can be applied where the substance of the application was settled over the objection of the grievor/applicant. To be clear, an applicant/greivor can settle for any reason she chooses and on any terms she chooses. To my mind these choices can have little or nothing to do with the human rights issues. The key fact being whether there is evidence that the applicant/grievor accepted the settlement and therefore intended that she finally resolve her disputes with the respondents. In the absence of some evidence of consent on the part of an applicant/grievor I cannot conclude that the substance of this Application has been appropriately dealt with pursuant to section 45.1 or, that it is an abuse of process.

21The respondents state that if the Tribunal takes this view of the application of section 45.1, then securing the applicant/grievor’s consent will make it very much more difficult to settle grievances. I appreciate that this approach may change the dynamics of settlement at arbitration but the dynamics of labour arbitrations have already begun to change in response to human rights issues being dealt with in those proceedings. In any case I find that the fact that this approach may change the way things are done in grievance arbitrations is an insufficient reason to find that a settlement opposed by a grievor/applicant has appropriately dealt with the substance of an Application under the Code.

22This is in some ways an unsatisfactory result. It is reasonably clear that the union, given the information it had at the time, worked hard to achieve a good result for the applicant. However, for all of the reasons set out above, I find that I am unable to conclude that section 45. 1 or the doctrines of abuse of process or issue estoppel cannot be applied in these circumstances. It may be that the failure of a party to accept a reasonable settlement might have consequences when determining the appropriate remedy, should a violation of the Code be found. However, at this stage of the proceeding the respondents’ Request is rejected. The parties will provide their available dates for a one day hearing of this Application in January 2011.