Therrien v. Ontario Public Service Employees Union, 2010 HRTO 382

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Therrien

Complainant

-and-

Ontario Human Rights Commission

-and-

Ontario Public Service Employees Union and David Johnson

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: February 18, 2010

Citation: 2010 HRTO 382

Indexed as: Therrien v. Ontario Public Service Employees Union

Appearances

Laura Therrien, Complainant ) On her own behalf

Ontario Human Rights Commission ) Anthony D. Griffin, Counsel

Ontario Public Service Employees Union ) Caroline V. Jones, Counsel

and David Johnson, Respondents )

INTRODUCTION

1This is a Complaint brought under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleging discrimination in employment on the grounds of disability and marital status. The Complaint was filed with the Ontario Human Rights Commission (the “Commission”), and referred to the Tribunal under the provisions of the Code as they existed prior to substantial amendments which came into force on June 30, 2008.

2This Interim Decision addresses the application of s. 45.1 of the Code to the Complaint against the respondents David Johnson and the Ontario Public Service Employees Union (“OPSEU”). Mr. Johnson was the president of OPSEU Local 108 at the time the allegations arose. The respondents allege that a proceeding before another administrative tribunal, which was settled voluntarily by the parties, has appropriately dealt with the substance of the Complaint.

3The parties were advised that the respondent’s Request for Order was dismissed and that my reasons would follow. These are my reasons for that decision.

background

4The complainant was a Correctional Officer at the Elgin-Middlesex Detention Centre. She commenced her employment in May 1991. In August 2004, when the circumstances underlying the Complaint against the respondents arose, the complainant was working in an accommodated position in the personnel office. The complainant had taken several leaves of absence as a result of illness and the deaths of her husband and both her parents. The complainant alleges that the respondents interfered with the accommodation process she was engaged in with her employer.

5The Complaint is against OPSEU and Mr. Johnson and not the complainant’s employer. The allegation is that the respondents interfered with the accommodation process, not that they failed to properly represent the complainant in her efforts to be accommodated by the employer. All of the cases relied on by the parties can be distinguished on the basis of one or both of these facts.

6Originally the complainant filed a separate human rights Complaint against her employer which the Commission ultimately declined to refer to Tribunal. The complainant also filed a complaint under the Workplace Discrimination and Harassment Prevention Policy (“WDHP”) and OPSEU filed a number of grievances against the employer on her behalf.

7The complainant’s various complaints and grievances against her employer were resolved by way of Minutes of Settlement dated May 1, 2009. The Minutes of Settlement, which were signed by the complainant as well as representatives of the union and the employer, indicate that they were entered into in the context of a proceeding before the Grievance Settlement Board. The agreement was not signed by Mr. Johnson.

8The agreement makes specific reference to all of the complainant’s grievances and complaints against her employer, including the human rights Complaint against the employer, which is identified by file number. The agreement also references by name the individuals who were named as respondents as part of the human rights complaint against the employer. There is no reference to the Complaint against Mr. Johnson and OPSEU despite the fact that the parties were actively preparing for the hearing of that Complaint when the settlement was reached.

9While the agreement of May 1, 2009 makes no reference to the Complaint against OPSEU and Mr. Johnson, it does refer to the events which occurred on August 30, 2004, which led the complainant to file her Complaint against the respondents. The agreement also contains a provision which reads as follows: “Ms. Therrien and the Union hereby withdraw any grievance she may have, WDHP complaints, Human Rights Complaint, and any related matter.” The respondents argue that the agreement therefore extends to the Complaint against OPSEU and Mr. Johnson and that this Complaint should be dismissed as appropriately dealt with by the settlement.

ANALYSIS AND DECISION

10The parties agree that s.55(2) of the Code gives the Tribunal jurisdiction to apply s.45.1 to complaints which predate the amendments to the Code. Section 45.1 gives the Tribunal the discretion to dismiss an application in circumstances where the Tribunal is satisfied that the subject matter of the application has been appropriately dealt with in another proceeding.

11The statutory mandate of the Tribunal is to bring applications and complaints to a fair, just and expeditious resolution. In Campbell v. Toronto District School Board, 2008 HRTO 62, and later in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal set out some of the factors which are important in assessing a Request under s. 45.1. I agree with those factors, which include the clear legislative intent represented by the language of s 45.1 to avoid duplication of proceedings, the importance of finality in litigation and the importance of recognizing the jurisdiction of other decision-makers who are called upon to decide human rights issues in other administrative law arenas. In Campbell, the Tribunal also made this important statement about the nature of human rights in considering the exercise of discretion under section 45.1:

First, the Code is an important public policy statute, protecting rights which are quasi-constitutional in nature. Those rights would be meaningless without access to a mechanism for their enforcement – the right to pursue a complaint under the Code should therefore not be denied absent a compelling reason.

12There is no dispute that a settlement in the context of a proceeding before a body such as the Grievance Settlement Board is sufficient to establish the existence of another proceeding (Dunn). The parties agree that the Minutes of Settlement effectively dispose of the complaints against the employer, including the human rights Complaint. The question in this case is whether the human rights Complaint against OPSEU and Mr. Johnson has also been appropriately dealt with by way of the agreement of May 1, 2009.

13In my view, the respondents’ Request should be dismissed for a number of reasons.

14The Minutes of Settlement set out in detail each complaint and grievance covered by the settlement, including the human rights Complaint against the employer, which is referred to by file number. The outstanding human rights Complaint against OPSEU and Mr. Johnson is not referenced in the agreement despite the fact that the parties were actively preparing for hearing at the time that the agreement was signed.

15The Grievance Settlement Board proceeding which gave rise to the negotiations between the parties did not involve the adjudication of the human rights Complaint against OPSEU and Mr. Johnson. In his interim decision of June 5, 2008, Vice-Chair Lynk differentiated between the claims against the employer and the union, finding that they raised different issues. This is not to suggest that the parties could not have resolved all of their outstanding issues through the settlement process which resulted in the agreement of May 1, 2009. However, given the fact that the human rights Complaint against OPSEU and Mr. Johnson was not before the Grievance Settlement Board, it would not be appropriate in this case, without clear language or some other evidence of the intention of the parties, to conclude that the agreement was intended to extend to that Complaint.

16The complainant also made submissions that she never intended the agreement to cover the Complaint against OPSEU and Mr. Johnson and that she was given assurances at the time of the signing of the Minutes of Settlement that the agreement would have no affect on her ability to pursue that Complaint. Neither OPSEU nor Mr. Johnson challenged this submission nor did they provide the Tribunal with any evidence or submissions about the intentions of the parties who entered into the agreement of May 1, 2009.

17It was the position of the respondents that I should disregard the complainant’s submissions about her intentions in entering into the agreement and infer instead, from the language of the agreement itself, that the substance of the complainant’s allegations were appropriately dealt with by the agreement. This approach would have effectively silenced the complainant, the only person present at the argument of the Request who was actually a signatory to the agreement. It would also be unduly technical and inconsistent with the Tribunal’s mandate to conduct itself in a manner that is fair, just and expeditious. I am not suggesting that in another case a respondent could not successfully rebut a complainant’s submissions about her intention upon entering a settlement agreement. However, no such evidence was called by the respondents and in this case, I find that the complainant’s submissions on her intention are supported by the language of the agreement.

18The damages section of the agreement clearly indicates that the complainant is receiving compensation for “alleged human rights violations related in any manner to the events of August 30, 2004”. The respondent takes the position that this language explicitly extends to all of the complainant’s human rights-related allegations. In addition, paragraph 4 of the agreement requires the complainant and the union to withdraw any grievance she may have, including WDHP complaints, human rights complaints and any related matter. However, read in the context of the agreement as a whole and against the backdrop of the complainant’s own submissions, I cannot infer that it was the intention of the parties that the agreement would cover anything but the human rights allegations against the employer.

19Similarly, the section of the agreement at paragraph 3, which releases the employer and its “servants”, must be read in the context of the whole agreement. The respondents argued that the release should be interpreted to include Mr. Johnson as a servant of the crown. The Complaint is against Mr. Johnson in his capacity as president of the union local, not as a crown employee. More importantly, the release specifically includes “all the respondents to the human rights complaint”. Again, the reference to a “complaint” is singular and must be read in the context of the “whereas” clause at the beginning of the agreement. The clause lists, by name, the individual respondents included in the Complaint against the employer. Mr. Johnson’s name does not appear in the “whereas” clause.

20The respondents appear to be of the view that the substance of the Complaint against OPSEU and Mr. Johnson has been appropriately dealt with in part because the complainant has received sufficient compensation for what she alleges she experienced. The respondents may or may not be correct, but I find that in this case that determination should be made on the basis of the evidence, not on the basis of a request under section 45.1 to dismiss the claim before it is heard.

21I have carefully considered the thoughtful submissions of the parties, the plain wording of the agreement and the complainant’s submissions about the intention of the parties when they entered into the settlement of May 1, 2009. I have interpreted the few ambiguities which exist in the agreement within the broader context of the settlement rather than in isolation. I have also considered the important principles set out in Campbell which relate to the exercise of the Tribunal’s discretion under section 45.1. In all of the circumstances, I cannot conclude that the agreement of May 1, 2009 deals with anything other than the complainant’s various claims against the employer and therefore I cannot find that the substance of the Complaint against OPSEU and Mr. Johnson has been appropriately dealt with.

22For all of these reasons, the respondent’s Request for Order is dismissed.