Vere v. Canadian Auto Workers, 2011 HRTO 748

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dennis Vere Applicant

-and-

Canadian Auto Workers Local 4207, Mark Goetz and Phil Eadie Respondents

A N D B E T W E E N:

Dennis Vere Applicant

-and-

Wescast Casting Wingham and Diane Thompson Respondents

INTERIM DECISION

Adjudicator: David Shannon Date: April 18, 2011 Citation: 2011 HRTO 748 Indexed as: Vere v. Canadian Auto Workers

APPEARANCES

Dennis Vere, Applicant ) Self-represented Canadian Auto Workers Local 4207, ) Barry Wadsworth, Counsel Mark Goetz and Phil Eadie, Respondents ) Wescast Casting Wingham and ) Philip J. Wolfenden, Counsel Diane Thompson, Respondents )

INTRODUCTION

1These are Applications dated June 28, 2009, and made under section 53(5) of Part VI of the Human Rights Code, R.S.O, c. H.19, as amended (the “Code”). The underlying complaints were filed with the Ontario Human Rights Commission on July 4, 2007. The applicant alleges he was discriminated on the grounds of disability, breach of settlement and reprisal respecting both vocational association and employment.

2Tribunal file TR-0871-09 (the “union Application”) names the applicant’s former union, the Canadian Auto Workers, Local 4207 (the “union”) and two union officials as respondents. Tribunal file TR-0969-09 (the “employer Application”) names the applicant’s former employer, Westcast Casting Wingham (the “employer”) and a member of its management as respondents.

3This Interim Decision addresses all respondents’ Requests to dismiss these Applications pursuant to section 45.1 of the Code on the basis that the substance of the Applications has been appropriately dealt with in a grievance, and the employer’s contention that to continue would result in an abuse of process. A preliminary hearing to address the Requests was held in London Ontario on August 19, 2010.

FACTS

4The applicant’s employment was terminated for absenteeism due to sickness by the employer on February 21, 2007.

5On February 28, 2007, with the assistance of his Union Committeeperson, the applicant filed a Grievance alleging

Unjust violation of article 4.01a, 4.02a, 24.01 and any other article, policy or legislation including human rights related to but not limited to.

6The grievance did not specify which ground of the Code was allegedly breached. The grievance proceeded through the usual steps of the grievance procedure pursuant to the collective agreement with a meeting of the employer, union representatives, and the applicant. He also brought an advocate (who was not legal counsel) to assist with negotiating at the grievance settlement meeting. An independent Grievance Settlement Officer attended in an attempt to resolve the grievance.

7At the Grievance Settlement meeting on April 18, 2007, the applicant decided to withdraw his grievance from arbitration, on the basis that he would resign his employment, receive a cheque in the amount of $21,000.00 less withholding taxes, and enter into a release.

8The applicant then signed a Final Release and Indemnity. He accepted the above terms in Full and Final Settlement of his grievance and released the corporate respondent and all of its employees from any statutory claims and he expressly agreed “not to file a claim or complaint (….) under the Ontario Human Rights Code”.

9In his Complaint the applicant states he felt excluded by the grievance process due to the actions of his union representatives and the process in general.

I had to defend myself. Union and I didn’t along well. Before grievance down with me to talk the grievance. Sat up with company. (Mark Goetz) April 18/2007 grievance settlement officer- didn’t even take my case up stairs to the company even the new medical documentation. Then pressured into buy out.

10The applicant had served as the union’s Plant Chairman. This was the highest-ranking elected Union position at the employer’s plant. The applicant received training from the union respecting the rules and responsibilities of the Plant Chairman office. He also organized a one-day workshop where the union’s national office sent a trainer to provide education on labour law and human rights. The applicant brought an advocate to assist him at the grievance settlement meeting. Given this I do not accept that he was naive to the grievance process, unaware of what a Full and Final Release meant, or uneducated on the basic terms of the Code.

DECISION

Breach of Settlement

11Section 45.9 of Part IV of the Code provides as follows:

(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8) …

(8) If, on an application under subsection 3, the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention.

12Section 53(6) confirms that the provisions contained in Part IV of the Code apply to applications, like these, made under section 53(5).

13The Code does not provide a general process for remedying alleged breaches of settlement. The scope of s.45.9 extends only to breaches of settlements of human rights applications. The applicant’s claim of breach of the settlement reqched at his grievance arbitration does not fall within the Tribunal’s power to decide and must be dismissed on that basis.

Section 45.1

14Section 45.1 states:

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.

15In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application. I find that the grievance procedure in question was a proceeding within the meaning of section 45.1. It was formal, there was representation, positions disclosed by all parties and a signed settlement as an outcome to the negotiations.

16This Tribunal has indicated that there must be some assurance that settlement agreements freely entered into will be honoured. In particular, it articulated important factors when considering dismissal in a unionized workplace pursuant to section 45.1 of the Code in Dunn v. Sault Ste Marie (City), 2008 HRTO 149, at paragraphs 34 and 35:

The importance of final and binding settlements in the unionized workplace is articulated in the purposes of the LRA, which include “[t]o 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. 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.

17At paragraph 43, this Tribunal also noted the very narrow parameters for hearing an application in these circumstances and their rationale when stating:

The Commission and complainant raise various arguments why the Tribunal should not dismiss these complaints as a result of the previous settlement. They make reference to the process that led to the Minutes of Settlement, including the alleged statements by the Labour Relations Officer. It is, in my view, inappropriate for this Tribunal to engage in any review of the confidential settlement process at the OLRB. Just as the Tribunal is not an appeal body from other tribunals, it does not have a general role in supervising mediation processes at other tribunals, absent exceptional circumstances such as allegations of human rights violations during the settlement process or the absence of another forum in which to raise allegations of duress.

18I will apply the Dunn test when considering the section 45.1 Requests. See also: Dube v. Rockhaven Recovery, 2009 HRTO 53; James v. Evonik Degussa Canada, 2009 HRTO 555; Egwuenu v. Toronto (Catholic District School Board), 2009 HRTO 378; Stansens v. Liquor Control Board of Ontario, 2009 HRTO 1560; and Bielman v. Casino Niagara 2009 HRTO 123.

19Having found that the grievance is a “proceeding” within meaning of s. 45.1 of the Code, I must turn my mind to the second part of the test where the issue for determination is whether the subject-matter of the Applications is the same and whether it was “appropriately dealt with” in the grievance proceeding.

20The grievance and the Applications under the Code arose from the termination of the applicant’s employment. I therefore find that these are the same facts that form the basis of both the Applications and grievance. However, before me the applicant alleges breaches of the Code that were not the subject of grievance process, specifically his claims of discrimination as against the union.

21The employer’s alleged discrimination in terminating the applicant’s employment was a live issue in the grievance and the settlement of that proceeding. The applicant agreed not to pursue human rights claims against the employer based on those events in his Release.

22I find that the allegations as against the employer during the grievance procedure for allegedly breaching the applicant’s rights not to be discriminated based on his disability were in pith and essence substantially the same, and were “appropriately dealt with.” It addressed human rights issues with specific reference to the Code in its complaint materials and the signed settlement documents. The applicant was not under duress in any fashion that would bring that settlement into disrepute.

23Given the importance of that this Tribunal has placed on dealing with labour negotiations and agreements in an expeditious fashion, and providing certainty to settlements properly entered into, I dismiss the employer Application, TR-0969-09.

24However, the union Application alleging discrimination in vocational association on the basis of disability and reprisal is not dismissed. It is not in pith or essence substantially the same as the allegations of discriminatory termination by the employer that was at issue in the grievance proceeding. The union respondents have not raised abuse of process before me.

25Accordingly, the union Application, Tribunal file TR-0871-09, may proceed.