HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vinay Bhandari
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Education, Sanaul Haque, Asif Khan and Soussan Tarari
Respondents
decision
Adjudicator: Lorne Slotnick
Indexed as: Bhandari v. Ontario (Education)
AppearanceS BY
Vinay Bhandari, Applicant ) On his own behalf
Her Majesty the Queen in Right of Ontario ) as represented by the Minister of Education, ) Peter Dailleboust, Sanaul Haque, Asif Khan and Soussan Tarari, ) Counsel Respondents )
1This is an Application under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), in which the applicant alleges discrimination and harassment in employment because of creed and ethnic origin. The underlying complaint was filed with the Ontario Human Rights Commission on August 16, 2006.
2The applicant was employed in the Ontario Public Service at the Ministry of Education starting in June, 2004. At all relevant times, he was represented by the Ontario Public Service Employees Union (the "union"). Prior to filing the complaint with the Commission, the applicant had filed two grievances through the union. Both of them claimed discrimination and harassment in employment, and one of them specifically cited violations of the Code. After filing the complaint, the applicant filed seven more grievances, including one challenging the termination of his employment in February 2007.
3The union referred the grievances to the Grievance Settlement Board, the tribunal with jurisdiction to adjudicate grievances in the Ontario Public Service, and which has jurisdiction to apply the Code. In March 2009, counsel for the union and counsel for the employer reached a settlement of the grievances, which involved a substantial amount of money being paid to the applicant. The Memorandum of Settlement was signed by the union and the employer but not by the applicant. It states in relevant part:
Whereas the Parties wish to resolve any and all employment related matters including any grievances filed by the Grievor, Mr. Vinay Bhandari, and all matters leading up to any such grievance on a without prejudice and without precedent basis to any other matter between the Parties;
Whereas the Grievor's employment with the Ministry of Education was severed on February 15, 2007;
Therefore the Parties agree to the following terms and conditions as full and final settlement of any matters relating to his employment with, or termination from, the Ontario Public Service on a without precedent or prejudice basis:
- The Union hereby withdraws Mr. Bhandari's grievances and agrees to notify the Grievance Settlement Board.
4The settlement also contains a release by the union in favour of the employer for all claims related to the applicant's employment, including any claims arising under the Code.
5The applicant then filed at the Ontario Labour Relations Board an application claiming that the union had breached its duty of fair representation. That application was dismissed by decision of the Board, dated November 23, 2009.
6This Tribunal has issued two Interim Decisions on this case. The most recent, dated July 8, 2010, 2010 HRTO 1489, ordered that the Application's scope be restricted to allegations arising prior to the filing of the complaint with the Commission in August 2006. In its first Interim Decision, dated November 4, 2009, 2009 HRTO 1875, the Tribunal directed each party to file submissions on whether, because of the settlement of the applicant's grievances, section 45.1 or the doctrine of abuse of process applied to this case.
7Section 45.1 reads as follows:
45.1 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.
8It appears that neither party filed any submissions in response to this direction, nor did either party advise the Tribunal that it had no submissions to make. As a consequence, the Tribunal has not considered whether the Application should be dismissed on the basis of section 45.1 or abuse of process.
9At the start of the hearing on August 11, 2010, I raised this issue with the parties, advising them that I was concerned about the existence of a settlement that, while not signed by the applicant, covered the matters raised in the Application. The parties made brief oral submissions on the matter. I offered them the opportunity to make written submissions but both parties advised that this was not necessary.
10The applicant says he was not part of the settlement between the union and the employer, was not even present when it was negotiated, does not agree with it, and wants his Application to proceed. He said he was never asking for money, and while acknowledging that he received and kept the settlement money, said he would be willing to return it.
11Counsel for the respondents stated the employer believes all matters have been settled, even though the applicant did not sign the settlement, a situation he acknowledged was rare in matters that are before the Grievance Settlement Board. The respondents note that the union had carriage of the grievances and was entitled to settle them without approval of the applicant.
12This Tribunal has commented in numerous decisions on the importance of upholding the finality of settlement agreements. In this case, there is no doubt that the two grievances filed before the complaint covered the same matters as the complaint. Those grievances are covered by the settlement negotiated in 2009 between the union and the employer. However, it appears the Tribunal has not been entirely consistent in its approach where a settlement has been reached between a union and an employer but where the grievor/applicant has not signed the settlement. There are decisions (for example, Lumley v. Trillium Lakelands District School Board, 2010 HRTO 1117 and Lemieux v. Guelph General Hospital, 2010 HRTO 1267) that seem to suggest that the applicant must be a party to the settlement in order for the Tribunal to dismiss an application under section 45.1 or for abuse of process. In other cases, the Tribunal has decided that the applicant's unhappiness with a settlement reached by a union and refusal to sign do not give that applicant the right to litigate the same matters before the Tribunal. See for example, Park v. Waterloo (Regional Municipality), 2010 HRTO 1604, where the Tribunal said it would be an abuse of process to proceed and Rysinski v. Aecon Industrial, 2010 HRTO 340, a case with very similar facts to this and where the Tribunal used section 45.1 to dismiss the application.
13As always, each case must be decided on its particular facts. I find the following facts to be of significance in this case. First, even though the applicant did not sign the settlement, he derived significant financial benefit from it. This distinguishes the matter from some of the cases where the union has simply withdrawn the grievance without the grievor receiving any payments, and the Tribunal has then declined to dismiss the application or apply section 45.1. Second, the union is the applicant's bargaining agent and acted on the grievor's behalf and is entitled to resolve grievances on his behalf. Third, the applicant has already attempted to challenge the union's actions and the Ontario Labour Relations Board has ruled that union's actions were "thorough and fair."
14In my view, in the circumstances of this case, it would be an abuse of process to let the matter proceed. The applicant is attempting to litigate matters that were settled to his advantage by his bargaining agent, acting fairly. The respondents are entitled to rely on their agreement with the union as a final resolution of these matters. The issues have been properly dealt with elsewhere, and there is no reason to revive them in this Application.
15The Application is therefore dismissed.
Dated at Toronto, this 12th day of August, 2010.
"Signed by"
Lorne Slotnick
Member