Teske v. Canadian Union of Public Employees, Local 4685, 2012 HRTO 1450

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marlene Teske Applicant

-and-

Canadian Union of Public Employees, Local 4685 Respondent

A N D B E T W E E N:

Marlene Teske Applicant

-and-

F.J. Davey Home, Canadian Union of Public Employees, Local 4685, and Laura Delhenty Respondents

DECISION

Adjudicator: Ian R. Mackenzie Date: July 25, 2012 Citation: 2012 HRTO 1450 Indexed as: Teske v. Canadian Union of Public Employees, Local 4685

APPEARANCES

Marlene Teske, Applicant Ernest J. Guiste, Counsel

Canadian Union of Public Employees, Local 4685 and Laura Delhenty, Respondents Elizabeth Nurse, Counsel

F.J. Davey Home, Respondent Michael Allen, Counsel

Introduction

1Marlene Teske has filed two Applications, one under section 53(3) of part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), and the other under section 34 of Part IV of the Code, alleging discrimination in employment and participation in a vocational association on the basis of age and disability. The first Application (T-0361-08) is against her former bargaining agent and the second Application (2010-07056-I) is against her former employer, former bargaining agent and a bargaining agent representative. The applicant’s employment was terminated and a grievance was filed on her behalf by her bargaining agent. At the arbitration hearing, a settlement was reached with the assistance of the arbitrator.

2The Tribunal ordered a summary hearing of the two Applications in a Case Assessment Direction (“CAD”) issued on April 14, 2011. Because of scheduling difficulties, the summary hearing occurred on March 15, 2012.

3At the summary hearing, the respondents relied on jurisprudence that had not been drawn to the attention of the applicant. I allowed the applicant to make further written submissions to address the jurisprudence and the respondents to reply to those submissions.

4The respondents objected to the additional written submissions of the applicant, as they went beyond submissions on the three case authorities cited by the respondents. The respondents submitted that I should not take these additional submissions into account.

5The applicant submitted that her submissions were on point and should be received. Furthermore, she submitted that it has not been the practice of the Tribunal to allow rebuttal submissions by respondents.

6In her written submissions, the applicant has raised the issue of conflict of interest on the part of counsel for the union, the paralegal representing the employer in earlier proceedings, and the arbitrator in the settlement of her grievance. The applicant asked for a further hearing to address the conflict of interest submission as she viewed its resolution as having “the potential to impact the substantive decisions”. The applicant stated that it is “questionable whether or not the Tribunal has jurisdiction to entertain” allegations of conflict of interest in another proceeding. The applicant further submitted that if I declined to deal with the conflict of interest issue, I should hold the decision on this Application in abeyance so a complaint to the Law Society of Upper Canada (“LSUC”) could be filed. The applicant stated that a finding of misconduct by the LSUC would be of relevance to the Application.

7The sole purpose of allowing the applicant to make further submissions was to provide her with an opportunity to respond to the jurisprudence that was only provided at the conference call hearing. I was clear that this was not an opportunity to make further submissions on other matters. Accordingly, I have not considered these additional submissions made by the applicant.

8In their submissions, the union and the personal respondent made submissions on the removal of the personal respondent, based on the position that she was working within the scope of her duties as a national representative. The CAD did not specify the removal of the personal respondent as an issue to be determined in the summary hearing. Accordingly, I have not considered it.

9In the CAD, the Tribunal identified the following issues that the parties were to be prepared to address:

• Should either or both of the Applications be dismissed, in whole or in part, on the basis of abuse of process as a result of the release and minutes of settlement signed by the applicant?
• Should either or both Applications be dismissed, in whole or in part, under s. 45.1 of the Code?
• Should either or both Applications be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the applications, or a part of them, will succeed.

Procedural history of Applications

10This decision relates to a Human Rights Commission-referred Complaint under the old pre-2008 amendments to the Code and a direct Application to the Tribunal made under the post-2008 direct access system. For ease of reference, I have referred to both proceedings as Applications.

11In a decision issued on September 15, 2009 (2009 HRTO 1480), the Application T-0361-08 was deferred pending the conclusion of a grievance arbitration process. After the conclusion of the grievance arbitration process, a Case Resolution Conference was ordered to hear the submissions of the parties on the application of section 45.1 of the Code or the doctrine of abuse of process (2010 HRTO 1405).

12On October 12, 2010, the applicant filed an Application naming the union, a union official and the employer as respondents. She requested an adjournment of the Case Resolution Conference hearing on the basis that the new Application raised essentially the same issue that was to be adjudicated at the hearing. The adjudicator concluded as follows (at paras. 8-9):

The adjournment is granted. I find that this is the most just, fair and expeditious manner of proceeding in light of the new Application. The issue remaining for determination in this Application relates to the settlement of the grievance and the conduct of the respondent union in securing that settlement. The only issue in the new Application as described by the Applicant relates to the conduct of the union and one of its officials as well as the employer in securing the settlement of the grievance. I find that the issue for resolution at the hearing next week appears to be substantially the same as that raised in the new Application. Given that the parties to the two proceedings although overlapping are not the same, a finding one way or the other about the conduct of the union in this Application would likely not be determinative of the liability, if any, of the employer identified as a respondent in the new Application. This circumstance raises the possibility of duplicative litigation about the same issue regardless of the outcome in this Application.

To be clear I have not determined that this Application ought to be consolidated or heard together with the new Application, but that possibility certainly arises. This Application is adjourned sine die, pending the further processing of the new Application and a determination by the Tribunal of the most appropriate manner of proceeding with submissions from all the parties.

Background to the Applications

13F. J. Davey Home is a nursing home in Sault Ste. Marie. The applicant was employed as a health care aide. She was a member of the bargaining unit represented by the respondent CUPE Local 4685.

14The applicant commenced her employment at F.J. Davey Home in 1985. In 2002, she suffered a work-related injury and was off work for two years before returning to work. In 2004 her employment was terminated on the basis that F.J. Davey Home’s conclusion that she was not able to perform the essential duties of her position and the employer could not accommodate her without undue hardship. The applicant’s union filed grievances on her behalf and reached a settlement with F.J. Davey Home that reinstated the applicant.

15The applicant was placed in a position involving light duties. The external funding for the position was ended in 2006, and the applicant was permanently laid off. The employer, the union and the applicant met to review positions at the F.J. Davey Home to determine if a position could be modified to provide continued employment for the applicant. The applicant signed a document acknowledging that she did not meet the requirements of the positions reviewed. The union filed a grievance on February 21, 2007. The hearing of the grievance occurred on February 18, 2010.

16The arbitrator conducted a mediation of the grievance and the resulting settlement was recorded as a consent order. The consent order referred to the human rights application (T-0361-08) as well as the grievance. It also referred to the fact that the applicant was given an opportunity to contact her counsel (and counsel in these Applications) prior to signing the minutes of settlement and declined to do so. The applicant was paid a lump sum in exchange for signing a release (set out below). She agreed to withdraw Application T-0361-08. She also agreed that she was properly represented by the union. The applicant signed both the minutes of settlement and the release.

17In the minutes of settlement, the applicant agreed that the terms of settlement represented a full and final resolution of all matters related to her employment. The applicant further agreed that she would not “launch, file or proceed with any other complaint or action against the Employer and/or the Union in respect of her employment … or in respect of her representation by the Union in this matter”. The release also referred to the recognition by the applicant that she had been made aware of her rights under the Code and that she was entering into the agreement “with full knowledge of the effect of my release”. The release also contained the following paragraph:

I confirm that before I signed this Release, I was provided with sufficient time to read and consider the execution of this Release and the settlement offer and to seek such other independent and professional advice as I deemed appropriate, including the assistance of the Canadian Union of Public Employees (the Union). I confirm that I fully understand the terms of this Release and the settlement offer and that I voluntarily accept the same and am signing the Release without any threat, duress or inducement apart from the consideration promised to me under the terms of the same.

18The applicant returned the settlement monies to the respondent F.J. Davey Home on February 26, 2010. The applicant filed Application 2010-07056-I on October 12, 2010.

Submissions

19The respondent F.J. Davey Homes and the respondents CUPE and Ms. Delhenty made separate submissions. For ease of reference, I have referred to the respondents as “employer respondent” and “union respondents” in summarizing their submissions.

20The applicant submitted that the Applications were deferred with the express purpose that the issues were to be dealt with on the merits. She relied on para. 14 of the 2009 HRTO 1480 decision for this submission:

In these circumstances, I find the most fair, just and expeditious approach is to defer consideration of Application T-0361-08 pending the conclusion of the grievance arbitration. The two proceedings arise out of the identical allegation – that the applicant was terminated contrary to the Code (and the collective agreement). They raise some or all of the same issues. The arbitration will likely be concluded later this year.

21The applicant submitted that in this decision, the adjudicator left open the opportunity to bring back the Applications to the Tribunal.

22The applicant stated that in a summary hearing process, the facts alleged in an Application must be considered to be true, for the purposes of the hearing. She submits that it is too early to come to any conclusions on whether the Applications are an abuse of process.

23The applicant submitted that since the settlement funds were returned to the respondent F. J. Davey Home, she received no benefit. Since the respondent accepted the return of the funds, it cannot now argue that the settlement is enforceable.

24The applicant submitted that she was induced to settle her grievance without the advice of counsel. She submitted that the Code is clear that an applicant cannot give up her rights under the Code in this way. She submitted that she was denied her right to assert her rights under the Code and it can never be an abuse of process to assert rights under the Code. She also submitted that a full evidentiary record will be required to show what the union did to induce her into the settlement. In addition, she submitted that the respondents intended by their actions to impede the rights of the applicant under the Code.

25The respondents CUPE and Ms. Delhenty submitted that there should be finality in litigation and referred me to Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. The union respondents submitted that it was an abuse of process to allow the Applications to proceed in light of the fact that the applicant signed the terms of settlement. The union respondents submitted that the applicant agreed to withdraw her grievance and not to pursue any other action against the parties.

26The union respondents submitted that the complaint was appropriately dealt with through the arbitration process. They submitted that, as had been concluded by the Tribunal in its 2009 decision on this matter, the facts in the two proceedings were similar. The union respondents submitted that all of the concerns of the applicant have been addressed through the arbitration process and settlement.

27The union respondents submitted that there was no reasonable prospect of success of the Application. They stated that the Application contains bald allegations of a conspiracy between the union and the employer. The union respondents noted that in determining whether there is a reasonable prospect of success, the Tribunal looks at whether there is a factual foundation to establish a reasonable prospect of success. The union respondents submitted that the applicant has made bald allegations and has not pointed to any facts that would show discrimination on the basis of disability.

28The union respondents submitted that it is not sufficient to ground an Application against a union solely on the allegation that one was not properly represented (Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996). In addition, the union respondents noted that there is a reference in the Application to financial pressures on the applicant. They stated that the Tribunal has held that financial stress does not amount to duress.

29The employer respondent submitted that the matters at issue in the grievance and in the Applications are similar. It submitted that the arbitration award clearly sets out the process by which the settlement was reached and completely discounts the allegations of the applicant that the settlement was a sham obtained under duress. The employer respondent submitted that the second Application does not contain allegations of discrimination on the basis of age or disability; in fact, it looks more like a complaint of a breach of the duty of fair representation.

30With regards to abuse of process, the respondents referred me to Zu v. Hamilton (City), 2010 HRTO 2461, and Holowka v. Ontario Nurses Association, 2010 HRTO 2171.

31The applicant submitted that what was alleged to have transpired before the arbitrator is hearsay and it would be an error of law to rely upon those statements. She submitted that evidence is required to determine if the settlement agreement was a charade.

32The applicant submitted that the Application must be read in light of the complaint against the union. She stated that the Application is the culmination of the practice and intent to subvert the applicant’s right to reinstatement and her rights under the Code.

33The applicant submitted that the union and the employer were “in bed together” and to give effect to their submissions would deprive the applicant of her rights under the Code.

34The applicant submitted that it was naïve to accept the minutes of settlement on their face, as the applicant was not a party to them. The applicant submitted that the arbitrator has a relationship with the parties and the goals and objectives of the employer and union are clearly reflected in the award.

35The applicant submitted that the cases relied upon by the respondents were clearly distinguishable on their facts and provide no guidance to the very unique and significant legal question raised by the facts of the Applications.

36In Holowka v. Ontario Nurses Association, the Applicant and her union negotiated a settlement package with respect to the termination of her employment and four months later she sought to assert a complaint under the Code against the union for not pursuing her rights to accommodation under the Code. In the instant case the applicant asserts that she was dismissed contrary to the previous 2004 Minutes of Settlement which specifically required accommodation of her disability. The applicant submitted that given that the she had independent counsel for her Applications which were against both the employer and the union, it is beyond the realm of reasonableness that counsel representing the respondents and an arbitrator appointed by them could be expected to protect her legal rights in the proceedings which give rise to the alleged “settlement”.

37The applicant submitted that in Zu v. Hamilton (City) the applicant and her employer settled her grievances and she later sought to bring forward what the Tribunal found to be the same factual issues for adjudication before the Tribunal. The applicant submitted that the instant case is different from Zu in that the violation of the Code dates back to the refusal of the employer to honour the accommodation obligations called for in the Minutes of Settlement of 2004 and the refusal of the union to grieve the matter. She stated that it is one thing for a union to refuse to grieve a matter that it has carefully considered and decided not to support but another matter to refuse in the circumstances of a breach of the 2004 Minutes of Settlement calling for accommodation only to change its mind when a human rights application is filed. She submitted that once the human rights application was filed the union became the employer’s “lap dog” and agreed to file a grievance only to later withdraw the grievance and settle on terms which suits itself and not the applicant.

38The applicant submitted that in Danyluk the court confirmed that the application of issue estoppel is discretionary and must have regard to the potential to do injustice. The applicant submitted that issue estoppel does not arise on the facts before the Tribunal.

39The applicant submitted that the applicant is not, in law, a party to a proceeding between a union and an employer. She submitted that it is questionable at best that a consent order between those two parties could be said to constitute a judicial proceeding that could bind the applicant.

40The employer respondent submitted that the Tribunal has already ruled on the propriety of arbitration proceedings in respecting the applicant’s rights in its 2009 decision, at para. 14, when it found it to be appropriate and reasonable to defer to the arbitration process. It submitted that the Tribunal held that a fair remedy could be obtained at arbitration.

41The union respondents submitted that in relying on Danyluk, they did not argue “issue estoppel” but were relying on the general principles of abuse of process enunciated in the decision cautioning against duplicative proceedings and the parties’ interests in finality of proceedings.

Decision

42In the CAD, the Tribunal identified the following issues to be addressed by the parties:

• Whether it is an abuse of process to allow the Applications to proceed;
• Whether either or both of the Applications should be dismissed under section 45.1 of the Code; and
• Is there a reasonable prospect of success of either or both of the applications.

43For the reasons set out below I have concluded that to allow the Applications to proceed would be an abuse of process. Accordingly, I do not need to address the application of section 45.1 of the Code or the reasonable prospect of success of the Applications.

44The Tribunal's jurisdiction to consider whether or not some or all of an application ought to be dismissed based on abuse of process arises out of subsection 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended. That subsection provides that a tribunal may make such orders or give such directions as it considers proper to prevent abuse of its processes.

45The doctrine of "abuse of process" is meant to preserve and promote judicial economy, consistency and finality. The Tribunal has held that the doctrine of “abuse of process” can apply in a variety of circumstances, including where a settlement has been reached: Zu v. Hamilton (City) and Holowka v. Ontario Nurses Association. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, at para. 35, the tribunal stated, “[t]here is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever form it is brought, the matter is at an end.”

46In Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151, the Tribunal stated, at paragraph 23, the relevant inquiry when considering “abuse of process” is “whether it would be unfair to permit the proceeding to continue having regard to the terms of the memorandum of settlement and all of the surrounding circumstances.”

47In its 2009 decision the Tribunal noted that the grievance and the first Application arose out of the identical allegation “that the applicant was terminated contrary to the Code (and the collective agreement)" and that “they raise some or all of the same issues.” I agree with this characterization of the Applications. The second Application was filed after the settlement at issue. In its 2010 decision, the Tribunal concluded that the issues in the second Application appeared to be substantially the same as the issues raised in the first Application. In reviewing the second Application, the allegations relate to the conduct of the settlement and the settlement itself.

48The applicant participated in settlement discussions at the arbitration hearing. She was given an opportunity to discuss the proposed terms of settlement with her own counsel. The applicant suggests in her Application that her financial needs forced her to accept the settlement. The fact that she returned the cheque to the employer after receiving it would seem to indicate that financial need was not a significant factor in her decision to sign the settlement agreement. In any event, the Tribunal has held that financial need does not constitute duress: Kailani v. Securitas Canada, 2009 HRTO 1183, at para. 35. Furthermore, the return of the settlement funds does not have the effect that the applicant has, in this way, unilaterally rendered the agreement a nullity.

49The applicant suggests that the minutes of settlement are not binding, as it is the result of a proceeding to which she is not a party. The applicant’s rights under the collective agreement were resolved in the settlement of her grievance. Section 56 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, clearly states that the collective agreement is binding upon the employees in the bargaining unit defined in the agreement. The bargaining agent is authorized to resolve grievances on behalf of its members, and affected employees are bound by that resolution. In any event, the applicant was consulted throughout the settlement discussions and signed the settlement.

50I find that the settlement fully addressed the human rights issues between the parties. In the minutes of settlement signed by the applicant she agreed that the terms of settlement represented a full and final resolution of “all matters” related to her employment. She also agreed to withdraw her first Application. She also recognized in the release that she had been made aware or her rights under the Code.

51The applicant has not established that she will be able to prove that she signed the settlement under duress.

52Furthermore, to the extent that the applicant seeks to overcome the effect of the release and settlement by alleging that she was not fairly treated in the settlement process by the respondents and the arbitrator, I find that this is still an abuse of process as she is seeking to set aside an agreement made in another forum. These allegations are not connected to any alleged violations of the Code. The decision of the Tribunal in Traversy involved the failure of a bargaining agent to refer a grievance to arbitration. The principles set out in that decision are equally applicable to a decision of a bargaining agent to settle a grievance. In Traversy, at para. 33, the Tribunal said: “[t]here must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.” Similarly, in this case, there is no factual foundation for a claim that the actions of the respondents in reaching a settlement were based on discriminatory factors.

53Accordingly, the Applications are dismissed.