Baldwin v. Thames Valley District School Board, 2010 HRTO 1784

Human Rights Tribunal of Ontario

B E T W E E N:

Kenneth Baldwin Applicant

-and-

Thames Valley District School Board and Carolyn May Respondents

CASE RESOLUTION CONFERENCE decision

Adjudicator: Keith Brennenstuhl

Date: August 31, 2010

Citation: 2010 HRTO 1784

Indexed as: Baldwin v. Thames Valley District School Board

APPEARANCES

Kenneth Baldwin, Applicant ) self-represented

Thames Valley District School Board ) Lorraine J. Por, Counsel and Carolyn May, Respondents )

1This is an Application filed November 7, 2008 under section 53(3) of the Human Rights Code, R.S.O, 1990, c. H.19 as amended, (the “Code”). The purpose of this Decision is to address the respondents’ Request for Order during Proceeding (“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 Case Resolution Conference (hearing) in this matter was held on August 16, 2010.

2The complaint underlying the present Application was filed with the Ontario Human Rights Commission on June 25, 2007 and alleged discrimination and harassment on the basis of disability arising from an administrative transfer in 2007. The applicant’s union filed a grievance on October 3, 2007 alleging that the administrative transfer was contrary to the collective agreement. The grievance was referred to arbitration and the hearing was scheduled for February 11, 2010. On January 21, 2010 the Union, on behalf of the applicant, and the employer settled the grievance and a Memorandum of Settlement was completed.

3Section 45.1 of the Code authorizes the Tribunal to dismiss an application “if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application”.

4In Dunn v. Sault Ste Marie (City), 2008 HRTO 149, the Tribunal addressed section 45.1 in circumstances where a matter had been settled in another proceeding and set out the general principles regarding the application of section 45.1 as follows at paras. 37 - 38:

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 “decision” 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.

I turn now to whether the OLRB proceeding appropriately dealt with the substance of the complaints that have now been referred to the Tribunal. Given that the OLRB proceeding was settled, the analysis in these circumstances must take into account that settlements are different from decisions. Settlement is voluntary, reflecting the will of the parties, and there are many reasons a particular litigant may decide to settle. Every agreement to settle litigation involves fashioning an outcome acceptable to all parties, and a litigant may well not everything sought. To examine whether a settlement was “appropriate” merely by comparing it to remedies that might be obtained if the applicant was successful in litigation would be to ignore this fact, and would not recognize that one of the benefits of settlements is that solutions parties develop themselves are often different from what a tribunal might have ordered. It would also not be appropriate to examine the reasoning process of the parties.

5The Tribunal went on to find that the principal factors in determining whether section 45.1 applied were the facts and issues in the proceeding that was settled and the language used by the parties to express the nature of the issues that were resolved.

6There is no dispute labour arbitrations have been found to be proceedings within the meaning of s.45.1. See: Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448; Rysinski v. Aecon Industrial, 2010 HRTO 340.

7It is undisputed that the same facts and issues that are raised by the applicant in these proceedings were raised in the grievance, namely the appropriateness of the administrative transfer in light of the applicant’s disability.

8Although the Memorandum of Settlement does not specifically refer to the Code, the underlying grievance alleging a violation of the Collective Agreement was filed under Article 4 of the Collective Agreement which specifically cites the Code and addresses equal treatment with respect to employment without discrimination. The representative of the union as well as the applicant’s representative both testified that they understood that the Memorandum of Settlement settled both the grievance and the human rights dispute.

9The applicant did not sign the Memorandum of Settlement or a release. This is not in itself unusual as the grievance is a proceeding between the union and the employer. However, I am satisfied the applicant was in agreement with the terms of settlement and that they resolved his claim that the administrative transfer was unfair because it was discriminatory. The union’s representative testified that the applicant had come up with the proposal which was ultimately incorporated into the settlement. The applicant’s proposal was taken to the employer by the union and the nature of the parties’ agreement was described by the union’s representative as “generous”. The union’s representative discussed the settlement with the applicant before it was finalized and the applicant expressed his pleasure with the resolution. The applicant does not dispute this.

10I have considered the nature of the settlement obtained by the applicant, which I agree was both innovative and generous in the circumstances, and am satisfied that the terms of the settlement appropriately dealt with the substance of this Application. As noted in Dunn it is implicit in a decision by the parties to resolve a matter voluntarily, that the substantive issues that were raised will not be brought up again in a different forum.

11Therefore, having found that the substance of this Application has been appropriately dealt with in another proceeding, the Application is dismissed.