Xian Li v. University Health Network, 2012 HRTO 2260

B E T W E E N:

Yong Xian Li Applicant

-and-

University Health Network Respondent

-and-

Canadian Union of Public Employees, Local 5001 Intervenor

INTERIM DECISION

Adjudicator: Geneviève Debané Date: December 4, 2012 Citation: 2012 HRTO 2260 Indexed as: Xian Li v. University Health Network

APPEARANCES

Yong Xian Li, Applicant Self-represented

University Health Network, Respondent Jacqueline Silvera, Representative

Canadian Union of Public Employees, Local 5001, Intervenor Ryan Goldvine, Counsel

Introduction

1This is an Application filed on December 29, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).

2The respondent filed a Response seeking the dismissal of the Application on the basis that another proceeding has appropriately dealt with the substance of the Application.

3The applicant filed a Reply in which he objects to the dismissal of the Application.

4In a Case Assessment Direction dated August 9, 2012, the Tribunal directed that a preliminary hearing be held to determine if the Application should be dismissed on the basis that another proceeding had appropriately dealt with the substance of the Application. This preliminary hearing was held on November 28, 2012 during which all of the parties participated. The Tribunal made the services of an English-Mandarin Interpreter available to the parties during the hearing.

Background

5The respondent terminated the applicant’s employment on January 24, 2011. The applicant’s bargaining agent the Canadian Union of Public Employees, Local 5001, filed a grievance with respect to the termination of his employment. This grievance was referred to arbitrator Kelly Waddingham for final and binding arbitration pursuant to the collective agreement.

6On May 31, 2011, the arbitration hearing was convened during which the parties tried to resolve the grievance. The matter was not settled at that time and the arbitration hearing was scheduled for a second day of hearing during the week of December 19, 2011.

7However, the parties continued to attempt to resolve the grievance. On November 28, 2011, the respondent and the intervenor entered into a Memorandum of Settlement (the “Settlement”) in which the applicant was to be reinstated with some compensation for lost wages but that he would be subject to a last chance agreement.

8The applicant did not execute the Settlement and brought an appeal of the intervenor’s decision to settle his grievance to the membership. On December 20, 2011, the membership upheld the intervenor’s decision to enter into the Settlement and withdraw the grievance.

9On December 22, 2011 the respondent wrote to the applicant to advise that he would be reinstated on January 3, 2012 pursuant to the Settlement. The applicant did not attend work and ultimately his employment was terminated for a second time by the respondent on January 6, 2012.

Position of the parties

10The respondent takes the position that the merits of the Application have been appropriately addressed by the Settlement. The respondent submits that the intervenor, as the applicant’s bargaining agent, had the authority to accept the terms of the Settlement on the applicant’s behalf. Further, the respondent stated that the applicant failed to communicate to the respondent that he did not agree with the Settlement at any point prior to his second termination from employment.

11The intervenor took no position during the hearing but did clarify that the applicant did not consent to the Settlement and withdrawal of the grievance.

12The applicant maintains that he did not agree to or sign the Settlement.

Decision

13 Section 45.1 of the Code provides as follows:

45.1 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.

14In Dunn v. Sault Ste. Marie (City), [2008 HRTO 149, 2008 HRTO 149, the Tribunal states at paragraphs 37 and 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 obtain 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 the 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.

[15] The Tribunal has also found that it is an abuse of process for an applicant to file an application if the subject-matter of the application was settled between the parties.

16Having reviewed the submissions of the parties, I find that the arbitration hearing was a “proceeding” for the purpose of section 45.1, however, I conclude that this proceeding did not appropriately deal with the substance of the Application. The applicant did not sign the Settlement nor agree to its terms, either through his conduct or acceptance of the consideration under the Settlement. In fact, the intervenor entered into this Settlement despite the applicant’s objections.

17In the cases of Shannon v. Renfrew (County) 2010 HRTO 930, Dupuis v. Religious Hospitalliers of St. Joseph of Cornwall, 2010 HRTO 1079, and Jean Résidence St. Louis, 2011 HRTO 180 the Tribunal declined to exercise its discretion to dismiss applications pursuant to section 45.1 in cases where unions withdrew grievances without the applicant’s consent.

18Given the applicant’s express objections over the withdrawal of his grievance and refusal to accept the Settlement, it is not an abuse of process for the applicant to file this Application and it is not appropriate to deny his rights under the Code.

19I find in the circumstances of this case that it is not appropriate to dismiss the application pursuant to section 45.1 of the Code or as an abuse of process.

Order

20The Tribunal orders:

a. The respondent’s request to dismiss the application is dismissed and the Tribunal will continue to process this Application; and

b. The respondent must file a full Response addressing all of the allegations in the Application within 14 days of this Interim Decision.

21I am not seized.

Dated at Toronto, this 4th day of December, 2012.

”signed by”

Geneviève Debané

Vice-chair