HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paul Nolan Applicant
-and-
Vale Inco Limited (CVRD Inco Ltd.) Respondent
AND B E T W E E N:
Paul Nolan Applicant
-and-
United Steelworkers Local 6500, John Fera and Patrick Veinot Respondents
DECISION
Adjudicator: Brian Sheehan Date: August 26, 2010 Citation: 2010 HRTO 1758 Indexed as: Nolan v. Vale Inco
APPEARANCES
Paul Nolan, Applicant ) Michael Hassell, Counsel CVRD Inco Limited ) Lauri Ressor, Counsel Mark Cutifani and Murlio Ferreira ) Respondents ) United Steelworkers Local 6500 ) Rosemarie Basa, Counsel John Fera and Patrick Veinot, Respondents )
1These Applications were filed on June 24, 2009 under section 53 (5) of the Human Rights Code R.S.O. 1990 c.H.19, as amended (the "Code").
2This Decision addresses a joint Request of the respondents to dismiss the Applications for the following reasons:
- pursuant to s. 45(1) of the Code another proceeding has appropriately dealt with the substance of the Applications;
- proceeding with these Applications would constitute an abuse of process;
- on account of delay.
Overview of the Facts
3The applicant was employed by the CVRD Inco Ltd., now called VALE Inco Ltd. (the "employer") from January 21, 1991 until September 23, 2005. He was throughout that period of time a bargaining unit member of the United Steelworkers, Local 6500 (the "union")
4From 1991 to 2000 the applicant worked underground. He then experienced a workplace injury which resulted in a disability related to his hands, wrists and arms. Subsequently, the applicant was offered various accommodated duties at the employer's "Dry" facility at the Copper Cliff Smelter Complex.
5On February 13, 2004, the employer terminated the applicant's employment for allegedly abusing his role as a health and safety representative. The applicant was reinstated to employment pursuant to a settlement reached between the parties. The applicant signed the settlement document.
6On October 14, 2004 the applicant again was terminated for alleged "unsatisfactory conduct" which included allegations of lateness, absenteeism and a failure to sign a medical release/authorization form. The grievance filed by the union with respect to that termination proceeded to arbitration before Arbitrator Gordon Simmons. The parties subsequently reached a settlement, the terms of which were integrated into an award issued by Arbitrator Simmons on January 4, 2005. The award included a "last chance" provision that dictated the employer could terminate the applicant's employment if he committed "any act or omission without reasonable explanation" which could attract discipline. It was further agreed that if Arbitrator Simmons found that a disciplinary event took place that he would not have the jurisdiction to substitute a lesser penalty.
7On September 23, 2005 the employer again terminated the applicant's employment. The cited grounds for the termination were: a failure to cooperate with the efforts of the employer to accommodate his return to work; insubordination; dishonesty; and absence without leave under false pretences.
8The union filed a grievance dated September 28, 2005 asserting that the employer did not have good and sufficient cause to terminate the Applicant's employment and a failure to accommodate his disabilities pursuant to the requirements of the Code. The grievance was referred to Arbitrator Simmons; with the hearing commencing on February 27, 2006.
9On October 18, 2006, at a continuation date for the arbitration hearing, the parties, including the applicant, entered into a Settlement and Release. The relevant provisions of that agreement were as follows:
SETTLEMENT AND RELEASE
WHEREAS the Grievor was employed by the Company from January 21, 1991 until September 23, 2005 when his employment was terminated by the company pursuant to a certain agreement dated December 14, 2004;
AND WHEREAS the Union filed a grievance, dated September 28, 2005, on the Grievor's behalf claiming the Company lacked good and sufficient cause to terminate the Grievor's employment (the "Grievance")
AND WHEREAS the grievance alleges, in part, that the Company failed in its duty to accommodate certain disabilities which it alleges that the Grievor suffers;
AND WHEREAS the Union and the Grievor, claim in the Grievance, that the Grievor suffers from certain disabilities related to his hands, wrists and arms which made work offered to accommodate the Grievor in the Dry, preparing Science North Souvenir Cards and using voice dictation software to copy certain manuals into Microsoft Word unsuitable for the Grievor and further that the Company failed in its duty to accommodate by not offering further accommodations to the Grievor;
AND WHEREAS the Grievor, the Union and the Company (hereinafter collectively referred to as the "Parties") agree that it is in their collective best interest to resolve all issues between them respecting the Grievance (including all human rights claims), the Grievor's employment with the Company and the ending of his employment with the Company without further recourse to litigation;
NOW THEREFORE the Parties covenant and agree as follows
The Grievor acknowledges that he ceased to be an employee of the Company effective on September 23, 2005 and has no further employment-related rights, contingent or otherwise, concerning further employment with the Company in the future.
In consideration of paragraph 1, above, the Company rescinds its termination of the Grievor from employment and will re-issue the Grievor's Record of Employment indicating the reason for leaving as "K-Other" without any further elaboration or explanation....
Also in consideration of paragraph 1, above, the Company agrees to pay to the Grievor the sum sixty five thousand dollars ($65,000) less deductions required by law. For the purposes of taxation and other liabilities, the sixty five thousand dollars ($65,000) provided for herein will be paid as follows:
(a) The Company will pay to the Grievor forthwith the sum of twenty thousand dollars ($20,000) as general damages under the Human Rights Code given the allegations that were made in the Grievance;
(b) The Company will pay to the Grievor the sum of up to twenty five thousand dollars ($25,000), less any deductions required by law, as a "retiring allowance" which the Grievor may direct ... be rolled over directly into an RRSP;
(c) The difference between $65,000 and such amounts paid under paragraphs 3(a) and 3(b) will be paid to the Grievor on November 7, 2006 less minimum statutory deductions required by law.
The Company shall provide the Grievor with a letter confirming his period of employment and positions held which shall be in the form attached hereto as "Schedule A"
The Grievor hereby releases and forever discharges on behalf of himself, his successors, heirs, executors, administrators and assigns, the Company and the Union... from any and all grievances, applications, actions, causes of action, contracts and covenants, with whether expressed or implied, claims and demands for damages, claims and demands for benefits, entitlement or entitlements, including any claims... under the Human Rights Code .......... in any way arising out of the Grievor's employment with the Company, including all claims related to his disability and related to the Company's handling of such claims .........
......
......
The Grievor and the Union agree that prior to signing this Settlement and the Release; they each had a full and independent opportunity to consider the effect of this release and that each of them is signing in this Settlement and Release of their volition. The Grievor specifically acknowledges that he has been afforded the opportunity to obtain independent advice about signing this Settlement and Release from David Baker of the Toronto law firm of Bakerlaw, on and prior to October 18, 2006, and that the said David Baker is not a union representative or counsel retained by the Union to assist the Union and the Grievor in connection with the litigation of the Grievance which is resolved by this Settlement and Release. The Grievor and the Union further acknowledge that each of them is relying on his or its own sources of information in executing this Settlement and Release and they are not relying on any information from anyone other than their own sources. The Grievor agrees he was fairly and adequately represented by the Union and its agents, officials, employees and representatives including legal representatives in the handling of his Grievance, the concluding of this Settlement and Release Agreement and the handling of all aspects of his leaving the Company's employ.
Further in consideration of the provisions of paragraphs 2 and 3, above, the Grievor hereby specifically releases the Union from any duty of fair representation for claim related thereto.
.
.....
......
Before the Workplace Safety and Insurance Board, at all levels including the Workplace Safety Appeals Tribunal, if applicable, INCO will ensure that its submissions do not contradict the following statement with which INCO concurs and it will so advise the Workplace Safety and Insurance Board and the Workplace Safety Appeals Tribunal, as may be applicable, in writing within two weeks of the date of execution of this Settlement and Release and thereafter as may be required to give effect to the agreements in this settlement agreement:
(a) The best accommodation for Paul Nolan in 2005 was the work that he was assigned to in the Dry, and then the work of assembling of the Science North souvenir cards and then the voice recognition software dictating certain manuals into Microsoft Word.
(b) After some time working in the Dry, the Grievor advised that he was incapable of performing all aspects of the work in the Dry because of his claimed medical condition and claimed physical limitations and he said that he suffered a deterioration of his condition when doing that work. INCO reassigned the Grievor to the work of assembling the Science North Souvenir cards because of the Grievor's claimed concerns and claimed condition.
(c) After some time working on the assembling of Science North Souvenir cards the Grievor indicated he was not able to do sufficient assembly of the Science North souvenir cards because of his claimed medical condition and claimed physical limitations INCO reassigned the Grievor to computer dictation work with "Dragon" software.
(d) After some time working on computer dictation work with "Dragon" software, the Grievor said he was not able to perform the dictation work because of his claimed medical condition and claimed physical limitations. INCO then determined that no further accommodative employment, beyond the work already made available for the Grievor and which remained available, was available for Paul Nolan. The grievor was not assigned by INCO to perform further work. Paul Nolan then ceased to be in INCO's employ having regard to his disabilities and long-term job prospects at INCO.
(e) The Company will not rely upon the fact of the Grievor having left the Company's employ pursuant to this Agreement in its submissions to the WSIB and/or to the Workplace Safety and Insurance Appeals Tribunal, if applicable, in connection with the Grievor's existing WSIB claims for benefits and related claims and/or with respect to any appeal that may be brought in connection therewith.
...
The Parties agree, each of them on their own behalf and not on behalf of any of the others, that each of them fully understand the terms of this Settlement and Release and that the covenants herein are the sole consideration for this Settlement and Release. The Grievor voluntarily accepts the said covenants and the company voluntarily accepts the said covenants for the purpose of making full and final compromise, adjustment and settlement of all rights and claims as aforesaid.
.....
Arbitrator Gordon Simmons shall remain seized of jurisdiction concerning the implementation, interpretation and alleged violation of this Settlement and Release Agreement.
The Union with the Grievor's consent and direction, hereby withdraws the Grievor's outstanding grievance(s)
(emphasis added)
10On March 23, 2007 the applicant wrote to representatives of the respondents indicating that he sought to rescind the Settlement and Release agreement. The applicant asserted that the settlement should not be enforced since "it was formed under mistake, misrepresentation, non-disclosure, undue influence and/or duress and was contrary to public policy". It was further suggested that the employer breached paragraph 13 of the settlement by the nature of the representations it made to the WSIB.
11Pursuant to the settlement agreement the employer forwarded to the applicant cheques in the amounts of $20,000 (for general damages) and $2,271. The applicant never deposited those cheques. The applicant, however, did utilize the $25,000 the employer had previously transferred directly into an RRSP account of the applicant. The applicant indicated he needed those funds to cover his family's daily living needs.
12The underlying complaints were filed with the Ontario Human Rights Commission on May 9, 2007.
Preliminary Matters
13During the course of the hearing, the applicant agreed to remove the individual respondents Mark Cutifani and Murlio Ferreira from Application TR-0577-09. The style of cause has been amended to record this.
14At the outset of the proceeding, the applicant brought a motion seeking that the law firm Shell Lawyers be removed as counsel for the union. It was asserted that since Brian Shell of that firm had represented the applicant through the various grievance arbitration proceedings, it would be a professional and ethical conflict of interest for that law firm to be acting on behalf of the union in this proceeding. Specifically, it was submitted since Mr. Shell had become privy to confidential information regarding the applicant, it would be inappropriate to allow Shell Lawyers to utilize that information on behalf of the respondent union.
15At the hearing, I issued an oral ruling dismissing the applicant's motion. With respect to various arbitration proceedings involving the grievor, no direct client/ solicitor relationship existed between Shell Lawyers and the applicant. That firm's client in those proceedings was the union not the applicant. That firm was, therefore, not in a conflict position by representing the union in this proceeding. Additionally, the jurisprudence suggests that a party's right to retain counsel of its own choosing should not be interfered with lightly.
Section 45.1
16Section 45.1 of the Code provides 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.
17In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal set out the following guiding principles regarding the application of section 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.
18The Tribunal has consistently adopted the view that a settlement of a labour arbitration grievance constitutes a "proceeding" for the purposes of section 45.1. Specifically in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 it was noted:
[37] I will deal first with whether a settlement of a matter commenced before a different tribunal may be a "proceeding" that has "dealt with the substance" of the complaints within the meaning of the section. I find that s. 45.1 may apply to settlements of proceedings under other statutory schemes. This conclusion is supported by both the wording and the purposes of s. 45.1. The provision refers to a "proceeding" having "dealt with" the matter, rather than using narrower words that would only encompass adjudication like "decisions" or "reasons". More important, the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation.
19The Tribunal in Campbell, offered the following analysis as to whether the substance of the application had been appropriately dealt with in another proceeding:
These definitions suggest that in considering whether the substance of the complaint has been appropriately dealt with, the Tribunal should consider whether the complaint, in its essence or pith, was dealt with in a manner suitable or proper to that essence or pith....
20The assertion that the employer breached its duty to accommodate obligations and the applicant's termination constituted a breach of the Code was at the core of the arbitration proceeding. In the midst of that proceeding the parties, including the applicant, reached a settlement which expansively documented the nature of the human rights issues and confirmed that those issues had been fully resolved by way of the settlement. Through the terms of the settlement the applicant received: substantial monetary compensation including a significant amount specifically attributed to damages associated with the human rights issues; favorable treatment in how his cessation of employment would be treated regarding future employment inquiries; and certain commitments as to representations that the employer would provide to the WSIB.
21The essence of these Applications were an attempt by the applicant to revive litigation asserting his termination of employment constituted a breach of the Code. Specifically, the applicant sought a hearing before this Tribunal to argue that his termination violated the Code. On its face, the substance of that issue was more than appropriately dealt with through the terms of the Settlement and Release agreement. Accordingly, absent any other considerations, it would be appropriate to dismiss this pursuant to s. 45.1
Abuse of Process
22Pursuant to section 23(1) of the Statutory Powers and Procedure Act R.S.O. 1990 c.S.22, as amended (SPPA ) the Tribunal has the jurisdiction not to proceed with a matter if it is of the view that to do so would constitute an abuse of its processes. See Kailani v. Securitas Canada 2009 HRTO 1183; Douse v. Hallmark Canada, 2009 HRTO 1254; Dube v. Rockhaven Recovery, 2009 HRTO 53.
23In Dunn, supra, the Tribunal recognized the importance of respecting the binding nature of settlements of human rights disputes that arise in any unionized environment. In particular at paras. 33 - 35 the Tribunal noted:
The Code and the Tribunal's Rules support, facilitate and enforce the final and binding settlement of human rights proceedings between parties if they choose to resolve the matter voluntarily. The current Code, in s. 45.9, provides that a settlement of an application before the Tribunal is binding on the parties, may be incorporated into a Tribunal order on the joint motion of the parties, and may be the subject of an application for enforcement. The Tribunal's Rules of Procedure provide for Tribunal mediation, on the initiative of the Tribunal or a party. The old Code, under which these complaints were filed, required the Commission to "endeavour to effect a settlement" of any complaint filed with it.
The importance of final and binding settlements in the unionized workplace is articulated in the purposes of the LRA, which include "to promote the expeditious resolution of workplace disputes". The importance of binding agreements was articulated by the OLRB as follows in TRW Automotive (Kelsey-Hayes Canada Ltd.), [2000] OLRB Rep. July/Aug. 731 at para. 14:
Parties are entitled to rely on agreements freely entered into. Nothing would be more disruptive to orderly labour relations than to permit parties to revoke agreements among employees, their trade union, and their employer into which the parties have entered to settle disputes or potential disputes.
This is true of human rights disputes, in whatever social area they arise. 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. (emphasis added)
24The Settlement and Release agreement agreed to by the applicant was replete with express language recognizing that any litigation regarding any human rights issues associated with his employment, and his termination from employment, was at an end and could not ever be revived. Specifically, in the last recital of the preamble, the applicant expressly agreed that all human rights issues were resolved. Moreover, at paragraph 5, he expressly agreed that he would not commence with any action against either respondent under the Code. Not only has the applicant failed to comply with the specific undertakings he agreed to; but he has done so after a considerable passage of time and after he has enjoyed certain benefits pursuant to the implementation of the terms of the settlement. Accordingly, absent any other considerations, it would constitute an abuse of its processes for the Tribunal to allow the applicant to continue to proceed with these Applications.
The Applicant's Arguments that the Settlement and Release Should not be Bar from these Applications Proceeding
The Settlement and Release - Contracting Out of the Code
25The applicant asserted that the Settlement and Release constituted an attempt by the parties to "contract out" of the provisions of the Code. The settlement agreement reached by the parties was anything but an attempt by the parties to avoid or circumvent the implications of the provisions of the Code. As suggested previously, in the midst of litigation where the relevant human rights issues were being extensively canvassed, the parties reached a settlement that fully addressed those human rights issues. If the applicant's submission were accepted, then the settlement of any human rights dispute, whatever the context, would constitute a "contracting out" of the Code.
Employer's Alleged Breach of the Settlement Agreement
26The applicant asserted that the employer breached the terms of the settlement agreement. In particular it was asserted that, pursuant to paragraph 13 of the agreement, the employer had promised that it would advise the WSIB as to its inability to find suitable work for the applicant within his medical restrictions. It was suggested the subsequent decision of the WSIB to deny Loss of Earnings Benefits and other benefits to the applicant was directly attributable to the employer's failure to comply with the terms of the settlement.
27The employer asserted that it complied with all the provisions of the settlement agreement. Specifically, it was suggested that the commitments as to the nature of the representations it was obligated to communicate to WSIB were carefully drafted and that the Employer followed through and communicated the agreed to representations. It was also noted that the applicant of his own initiative had placed in abeyance his appeal to the WSIAT the decision to deny his entitlement to benefits.
28The Settlement and Release agreement expressly provided that jurisdiction over any alleged breach of this settlement resided with Arbitrator Simmons. The parties thus expressly agreed, as is traditionally the case in a settlement reached in the midst of a labour arbitration proceeding, that the arbitrator presiding over the matter would remain seized of jurisdiction to deal with any dispute regarding an alleged breach of the terms of the settlement. The applicant has not requested the union to make representations to Arbitrator Simmons regarding the alleged breach. Moreover, both the respondents indicated that it was their position that the applicant had an independent right to request that the arbitrator reconvene a hearing to deal with the applicant's assertion that there had been a breach of the agreement.
29The appropriate forum for any issue regarding an alleged breach of the terms of the settlement to be resolved is before Arbitrator Simmons. It is, therefore, difficult to understand the basis for which this Tribunal would assume jurisdiction over the claim that there had been a breach of that agreement. The Tribunal, pursuant to s.45.9, has jurisdiction over a purported breach of a settlement reached under a Tribunal proceeding. Absent a claim that the settlement itself constitutes a breach of the Code, the Tribunal does not have inherent, or over-arching jurisdiction, over a purported breach of a settlement related to a non Tribunal proceeding.
30Additionally, it is noted that even if it were found that a breach of the terms of the settlement had occurred it is doubtful that the appropriate remedy would involve the negation of the terms of the settlement, including the continuing binding nature of the release components of the settlement.
Lack of Independent Legal Advice
31The applicant asserted, notwithstanding the express wording of paragraph 8 of the Settlement and Release that he was denied a proper opportunity to obtain independent legal advice regarding the terms of the settlement. It was acknowledged that David Baker was retained by the applicant to provide such independent advice. It was, however, suggested that he was not in a position to provide a thorough legal opinion on the appropriateness of the settlement document. In furtherance of this point, reference was made to the fact that the final settlement document was only faxed to Mr. Baker on the evening that it was signed and while subsequently Mr. Baker did have an opportunity to have a telephone conversation with the applicant, he did not have sufficient time to fully advise the applicant on all the issues related to the Settlement and Release document.
32It was further submitted that the need for a full opportunity for Mr. Baker to review with the applicant the terms of the settlement was heightened by the fact that Mr. Shell was pressuring the applicant to sign the settlement. Specifically, it was suggested that Mr. Shell repeatedly advised the applicant that he would not be successful at arbitration. Finally, it was suggested that the need for independent legal advice was crucial because the applicant did not fully understand the terms of the settlement.
33Contrary to the assertions of the applicant, the facts establish that he did have the opportunity to seek, and did in fact receive independent legal advice. Mr. Baker reviewed with the applicant the terms of the settlement and provided advice as to the appropriateness of agreeing to the terms of the settlement. It is noted that the applicant specifically sought Mr. Baker's advice with respect to the contentious issue of the wording of paragraph 13 of the settlement.
34There is no absolute right of an individual to independent legal advice regarding the settlement of a human rights dispute. In the unionized sector, the vast majority of grievances involving alleged breaches of the Code are resolved without the grievor being provided an opportunity for independent legal advice. The relevancy of an absence of independent legal advice relates to the question as to whether it can be suggested that the individual did not understand the terms of the settlement document. The lack of independent legal advice may reinforce an argument that an individual did not fully appreciate the terms of the agreed to settlement.
35In the case at hand, the applicant not only had the benefit of the advice of Mr. Baker, he also had the advice of experienced counsel in Mr. Shell. While he may not have appreciated receiving the advice of Mr. Shell that his chances of success at arbitration were not favorable, it was not inappropriate whatsoever, and arguably incumbent upon, Mr. Shell to provide that advice. Additionally, I do not accept that the applicant was unsophisticated in terms of the nature of the issues before him and the terms of the settlement document. He had been through the arbitration process on a number of occasions and had been part of settlement agreements with respect to the resolution of his prior termination grievances. Accordingly, there is no basis to suggest that the Settlement and Release should not be enforced because of a purported lack of understanding of its terms by the applicant.
Duress
36It was asserted that the applicant was under duress when he executed the settlement agreement. In particular, it was noted that the applicant had been out of work since September 23, 2005 and that he had experienced serious financial pressures in terms of supporting his family since his termination to the point that he could no longer make payments on the familial home which ultimately had to be sold.
37The Tribunal has recognized that individuals in circumstances such as the applicant who have lost their employment face difficult economic circumstances; yet the existence of such difficulties have generally not been viewed as a sufficient basis to constitute duress such that an otherwise binding agreement should not be enforced. In Kailani v. Securitas Canada, 2009 HRTO 1183, the Tribunal noted that the test for economic duress is set high:
[35] (.....) however, it seems apparent that the test for economic distress is high. Most people who had their employment terminated are faced with economic difficulty. Financial difficulty alone cannot therefore be sufficient. If it were, almost every settlement arising out of the termination of employment could be violated.
[36] I accept that the applicant had financial difficulties as a result of a loss of his employment and he was faced with a difficult choice when presented with the Memorandum. However, he presented no evidence established that his need was so serious that he had no other option but to sign the Memorandum. There is no evidence that the applicant was otherwise coerced or forced to sign the Minutes.
38Mr. Hassell, on behalf of the applicant, seemed to recognize the high threshold to meet when advancing an economic duress argument, and accordingly he suggested that the duress experienced by the applicant was also associated with the advice he was receiving from Mr. Shell that he should sign the memorandum.
39It is accepted the choice before the applicant was not an easy one. He was relatively a long service employee of the employer. By agreeing to the settlement he would be closing the door on continuing employment with the employer. The opportunity and the possibility of obtaining employment with a similar compensation and benefits package elsewhere, may have been viewed realistically as unlikely. At the same time, however, he was facing the reality of proceeding with the arbitration case against the background of a "last chance" provision where the arbitrator had no discretion to substitute a lesser penalty. The fact that the applicant, or any other similarly situated employee, has to make a choice between two options, neither of which are necessarily attractive, does not in itself, suggest that the choice made by the employee should not enforced.
Lack of Consideration- The Application Against the Union
40It is asserted by the applicant that the Release portions of the settlement document cannot be binding as they relate to the union as there was no "consideration" flowing from the union to the applicant under the terms of the settlement agreement.
41The union had carriage over the grievance. Its agreement was necessary for the applicant to receive the terms of the settlement negotiated in his favour. Therefore, the consideration flowing from the union to the grievor was that the union acquiesced to the settlement and agreed to withdraw the grievance.
42More fundamentally, the simple answer to the lack of consideration argument is the fact that there are not two separate settlement agreement documents. There exists a single Settlement and Release binding all three parties. There was clearly substantial consideration flowing to the applicant through the terms of that agreement. Accordingly, from the contractual law perspective, the agreement does not fail for a lack of consideration. The terms, obligations and undertakings, set out in that agreement are therefore binding on all the parties to the agreement.
Conclusion
43None of the rationales offered by the applicant for not enforcing the terms of the Settlement and Release are persuasive. Accordingly, pursuant to section 45.1, and on the basis of an abuse of process, these Applications are dismissed. In light of that determination there is no need to deal with the respondents' delay argument.
Dated at Toronto this 26th day of August, 2010.
"Signed by"
______________________________________
Brian Sheehan Member