William Brintnell v. London Health Sciences Centre, 2010 HRTO 811

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Brintnell

Applicant

-and-

London Health Sciences Centre

Respondent

DECISION

Adjudicator: Brian Sheehan

Date: April 23, 2010

Citation: 2010 HRTO 811

Indexed as: Brintnell v. London Health Sciences

APPEARANCES

William Brintnell, Applicant ) On his own behalf

London Health Sciences Centre, Respondent ) Brian O’Bryne, Counsel )

1This Decision determines the respondent’s Request that the Application be dismissed on the grounds that the issues raised in the Application were fully resolved as part of a prior proceeding.

Background

2The applicant was terminated from his employment with the respondent on May 25, 2006. The stated reasons for his termination were;

1. he was under the influence of alcohol at work contrary to the terms of a “last chance” agreement he had previously executed; and

2. he attempted to sabotage a urine test that he agreed to take by diluting the sample.

3On May 26, 2000 Canadian Auto Workers (CAW) Local 27, filed a grievance on the applicant’s behalf asserting a “failure to accommodate-wrongful dismissal”.

4That grievance was referred to be heard by Mr. Frank Reilly pursuant to the mediation/arbitration provisions set out at Section 50 of the Labour Relations Act,1995. S.O. 1995, c.1, Sched.A, as amended (LRA).

5The respondent as part of that mediation/arbitration process asserted that it fulfilled its duty to accommodate the applicant. In particular the respondent asserted the following efforts were made to accommodate the applicant:

1. In 1995, they agreed to an arbitrated settlement providing for the conditional reinstatement of the applicant subsequent to his termination for being under the influence of alcohol at work.

2. In 1999, after the applicant was found again to have been under the influence of alcohol at work, they directed him towards rehabilitation assistance rather than terminating his employment.

3. In 2005, after another incident of the applicant being under the influence of alcohol at work, they agreed to a “last chance” agreement as an alternative to terminating his employment.

6At the October 23, 2006 mediation/ arbitration hearing the parties entered into Minutes of Settlement. The key provisions of those Minutes were the following:

1. The respondent paid the applicant the sum of $7000.00.

2. The respondent was obligated to respond to any employment inquiry regarding the applicant by indicating that he “was a cooperative and hard-working employee who resigned his employment to seek other employment opportunities”.

3. The applicant agreed “not to file any action, suit or claim under any statute or at common law”. Additionally it was agreed that the grievance was settled “for all purposes”.

7On May 25, 2007 the applicant filed a complaint with the Ontario Human Rights Commission. In that complaint he asserted that two days before his employment was terminated he reported to the respondent's Occupational Health Department that he had a badly herniated disc in his back that would require surgery. The applicant alleged that the decision to terminate him was connected to his reporting of this disability. The respondent disputed the applicant's claim that he reported any problem, whatsoever, pertaining to his back to their Occupational Health Department.

8The respondent took the position that by filing the OHRC complaint the applicant had breached the Minutes of Settlement and requested that Mr. Reilly reconvene the hearing.

9The reconvened hearing took place on October 16, 2007. The applicant did not attend the hearing due to insufficient notice. After the hearing, Mr. Reilly issued an Award wherein he ruled that he had jurisdiction, pursuant to section 48(12)(j) of the LRA, to resolve all the issues associated with the applicant's termination including whether the respondent had breached its duty to accommodate obligations under the Code. Mr. Reilly further determined that the Minutes of Settlement resolved all the issues between the parties. Accordingly, the only issue that could be addressed by way of the reconvened hearing was whether the grievor had any medical incapacity that impacted upon his understanding of the situation when the Minutes of Settlement were executed on October 23, 2006.

10A further hearing took place on April 7, 2008. The applicant, notwithstanding being provided appropriate notice, failed to attend that hearing. Mr. Reilly subsequently issued a final Award finding that the Minutes of Settlement had resolved all issues between the parties including the issues raised in the applicant's OHRC complaint. Mr. Reilly further ruled that the grievor, by filing that complaint, had breached the Minutes of Settlement.

Decision

11Section 45.1 of the Code reads 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.

12The Tribunal has determined the following principles as set out in Campbell v. Toronto District School Board, 2008 HRTO 62, applied to the interpretation of s.45.1

• Section 45.1 gives expression to 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 any other form.

13The Tribunal has also expressly articulated the importance of settlements in a unionized workplace. In finding that such settlements constituted a “proceeding” for the purposes of section 45.1 the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, noted as follows:

The importance of final and binding settlements in the unionized workplace is articulated in the purposes of the LRA, which include “topromote the expeditious resolution of workplace disputes.” The importance of binding agreements was articulated by the OLRB 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 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. This is a fundamental principle that should guide the Tribunal in the interpretation of s. 45.1, because to do otherwise could make the finality of settlements highly uncertain.

14All the relevant human rights issues associated with the applicant's termination were known to the parties at the time of the execution of the Minutes of Settlement. Specifically, the parties’ agreement was reached against the backdrop of the respondent’s claim that it had fulfilled its duty to accommodate obligations through its previous initiatives to continue to employ the applicant notwithstanding the fact that he had on several occasions appeared at work under the influence of alcohol. Moreover the applicant's assertion that his termination was connected to his reporting a problem with his back to the respondent’s Occupational Health Department was part of the factual mix before the parties when they agreed to the Minutes of Settlement.

15The substance of this Application was, therefore, before the parties when they executed the Minutes of Settlement. The terms of the settlement suggest that the parties appropriately dealt with the matter as contemplated under s.45.1. In exchange for not pursuing any further litigation associated with his termination the applicant received a significant amount of compensation and a favourable treatment of his employment history.

16The applicant claimed he only entered into the Minutes of Settlement because he was advised by an OHRC official that he had to dissolve his relationship with his union before he could proceed with a human rights complaint. Even if such specific advice was provided, which is extremely doubtful given its questionable nature, it would not have constituted a sufficient basis to disrupt the agreement of the parties. The policy goal articulated in Dunn of respecting the binding nature of freely negotiated settlements suggests where the parties have appropriately canvassed the relevant human rights exceptional circumstances would have to exist for the full scope of the terms that settlement not to be recognized. One such potential circumstance would be where the employee was not capable of appreciating the agreement entered into because of a Code-related reason. That is exactly the line of the inquiry that Mr. Reilly in his follow-up Award would have allowed the union and the applicant to pursue.

17It is additionally my view that it would also constitute an abuse of its processes for this Tribunal to allow this application to proceed. Pursuant to section 23(1) of the Statutory Powers Procedure Act, R.S.O 1990 c. S.22, as amended, this Tribunal has the jurisdiction to make such orders to prevent an abuse of its processes. As previously noted the applicant enjoyed the benefit of the $7000 he received pursuant to the Minutes of Settlement. He also received the benefit of the favourable treatment of his employment history in terms of potential employment inquiries. In return the respondent received the certainty that the issues associated with this termination, including any human rights issues, had been fully and finally resolved. It is inappropriate for the applicant after enjoying the provisions of the agreement in his favour to later assert, before this Tribunal, that the terms providing for the end of litigation between the parties were not binding and enforceable.

18Accordingly the Application is dismissed.