HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Ann Corbiere

Applicant

-and-

University of Sudbury, Andrii Krawchuk, and Nahum Kanhai

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: February 13, 2012

Citation: 2012 HRTO 309

Indexed as: Corbiere v. University of Sudbury

WRITTEN & ORAL SUBMISSIONS BY

Mary Ann Corbiere, Applicant ) Self-Represented

University of Sudbury, Andrii Krawchuk ) Jack Braithwaite, Counsel

and Nahum Kanhai, Respondents )

INTRODUCTION

1The applicant filed an Application on February 3, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment because of race, ancestry and sex.

2The applicant is an Assistant Professor with the Department of Native Studies at the respondent university. The personal respondents are the President of the respondent university and the Chair of the applicant’s department. The applicant served as a faculty representative on the respondent’s Board of Regents, the body that deals with the governance of the university.

3The applicant alleges she has been subjected to discrimination and harassment because she is a woman of Aboriginal ancestry. The applicant alleges that she was treated unfairly and harassed by the President of the respondent university; she was unfairly denied the ability to rejoin the Board of Regents; she was unfairly denied promotion to Associate Professor; she was treated unfairly in the handling of student complaints; she was given an unfair teaching load; and her pay was unfairly deducted.

4The respondents filed a Response on May 26, 2010. The respondents deny the allegations of discrimination, harassment and reprisal. The respondents submit that the parties successfully resolved a number of grievances filed on behalf of the applicant and these agreements represent a full and final settlement of many of the matters between the parties. The respondents assert that the applicant’s remaining allegations are matters outside of the purview of the Code. The respondents submit that permitting the Application to proceed in the face of the settlements would constitute an abuse of process.

5The parties agreed to deal with the following outstanding preliminary issue by way of a teleconference hearing:

Whether or not all or part of the Application ought to be dismissed as an abuse of process because the parties have a settlement agreement and release with respect to a grievance?

6The Tribunal convened a conference call on November 1, 2011, to hear the parties’ submissions with respect to the preliminary issue of abuse or process. The applicant and counsel for the respondents participated on the call. The parties filed written submissions and documentary evidence prior to the hearing and the Tribunal received additional documentary materials and submissions from both parties after the hearing.

DECISION

7For the reasons that follow, I conclude that paragraphs 6, 8-28 and 30-31 should be struck from the Application narrative as constituting the subject matter of agreements and settlements previously entered into by the parties. I find that to allow the allegations in these paragraphs to continue to form the basis of the Application would constitute an abuse of process given the parties’ agreements to resolve those matters.

SUMMARY OF APPLICATION & PARTIES’ POSITIONS

8The allegations made in the Application can be summarized as follows:

A. Paragraphs 1-4, 29 & 32-35: concerns with respect to the actions of the President of the respondent university and the process of bringing forward complaints about the President;

B. Paragraphs 5 & 7: concerns with respect to the criteria for sitting on the respondent university’s Board of Regents;

C. Paragraphs 6 & 8: concerns with respect to the denial of promotion to Associate Professor;

D. Paragraphs 9-13: concerns with respect to the applicant’s teaching load in 2009-2010;

E. Paragraphs 14-26: concerns with respect to the handling of student complaints about the applicant; and

F. Paragraphs 27-28, 30-31: concerns with respect to the deduction of $500 overload pay in 2009.

9The respondents submit that allegations contained in above-noted items C, D, E and F were successfully resolved between the parties and that it would be an abuse of process to allow the Application to continue to make these claims. The respondents provided copies of various letters, grievances and memorandums of settlement which they assert deal with many of the allegations raised in the Application. The respondents contend that the remaining allegations relate to the applicant’s perceptions of deficiencies in the respondent university’s policies and practices and, therefore, those remaining matters are outside of the purview of the Code.

10The applicant does not contest that she, her union and the respondents entered into settlements and/or resolved certain matters alleged in her Application. Nor does the applicant contend that the settlements should be set aside. Rather, the applicant argues that the settlements and agreements pertained to grievances under a collective agreement and, therefore, the resulting resolutions do not address the human rights issues raised in the Application. The applicant submits that there are human rights elements for each of her allegations that remain unresolved and outstanding. The applicant disputes that it would be an abuse of process to proceed with the settled allegations in these circumstances.

ANALYSIS & FINDINGS

11The Tribunal has the jurisdiction to consider on a preliminary basis whether or not some or all of an application ought to be dismissed based on abuse of process. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions as it considers proper to prevent abuse of its processes.

12The Tribunal has held that the doctrine of “abuse of process” can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an application to continue. The circumstances that can give rise to an “abuse of process” are not finite and may include, but are not limited to, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of “abuse of process” is on the integrity of the administrative justice. See Campbell v. Toronto District School Board, 2008 HRTO 62, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.

13The Tribunal’s jurisprudence establishes that proceeding with an application may constitute an abuse of process when the parties have previously settled the subject-matter of the Application. See Campbell, supra; Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151; Zu v. Hamilton (City), 2010 HRTO 2461; and Holowka v. Ontario Nurses Association, 2010 HRTO 2171. As recognized by the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, at para. 35, “[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.”

14In Messiah, supra, notwithstanding the absence of a release, the Tribunal applied the doctrine of “abuse of process” to dismiss the application where it was apparent from the agreement that the parties intended to resolve outstanding employment issues. 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.”

15I will now consider the applicant’s allegations and determine whether it would be unfair to permit some or all of the allegations to continue as part of the Application having regard to any settlements or agreements between the parties and all of the surrounding circumstances.

Items A and B

16The applicant submits that the allegations as contained in items A and B were never the subject of any of her grievances and, therefore, remain outstanding human rights concerns. With respect to item A, the applicant alleges that she was harassed and treated unfairly by the President and that there was no institutional recourse available to her to raise her concerns regarding the alleged mistreatment. The applicant submits that her concerns about the President were, therefore, never addressed and the university’s complaints process remains the same so that she still cannot pursue a harassment complaint against the President. With respect to item B, the applicant alleges that the adoption of new eligibility criteria disqualified her from rejoining the Board of Regents.

17Although the respondents acknowledge that the allegations in items A and B have not been settled with the applicant, the respondents argue that these allegations are wholly administrative issues and do not raise human rights complaints. The respondents further argue that the applicant’s complaints about the President were investigated by the university Treasurer who concluded that applicant’s concerns related to administrative matters and did not constitute harassment.

18The parties were advised at the outset of the conference call that I would not be considering any of the substantive merits of the allegations and the parties’ dispute over whether these allegations pertained to administrative or human rights matters would be not be addressed at this stage. The purpose of the conference call, as set out in an earlier Case Assessment Direction, was to consider the issue of whether there was an abuse of process given the existence of grievance settlements and resolutions.

19I find that items A and B did not form part of a previous settlement or agreement between the parties and, therefore, do not trigger administrative justice concerns of revisiting previously settled claims. Thus, allowing the Application to proceed with respect these allegations does not constitute an abuse of process.

Item C

20With respect to the issue of promotion, the respondents submit that this matter has been previously resolved though the grievance procedure, which included the respondent university agreeing to grant the applicant automatic promotion to Associate Professor on the basis of her completion and publication of a specific project. The respondents provided a copy of a document entitled “Minutes of Settlement of the grievance of Dr. Mary Ann Corbiere concerning the denial of promotion”, dated September 3, 2009. These Minutes of Settlement explicitly state that the agreement is a “complete settlement” of the applicant’s grievance, LUFA-US 2008-06.

21The applicant does not dispute that the denial of her promotion is the subject of minutes of settlement. The applicant expressly states in her narrative that she is “not asking the Tribunal to address those Minutes of Settlement in any way since... they represent a binding contract.” Rather, the applicant contends that she should not be prevented from proceeding with this allegation because the promotion grievance was settled under a collective agreement and therefore, did not, and could not have, satisfactorily resolved her human rights claims.

22On their face, the September 3, 2009 Minutes of Settlement appear to deal with the same factual issue as raised in the Application – the denial of promotion to Assistant Professor. Based on the terms of the settlement, it appears that the parties agreed to certain conditions to facilitate the applicant’s promotion.

23In my view, it is not open to the applicant to now allege that the settlement of her promotion grievance did not address the human rights elements of her concerns. There is no evidence before me that either the applicant or her union in resolving the promotion grievance intended to exclude or exempt any human rights dimensions to this claim. In fact, the documentary evidence indicates that in the spring of 2009 the applicant had taken various steps to formally raise and pursue her human rights concerns of differential treatment and harassment with the respondent institution. As in Zu v. Hamilton (City), supra, this is not a case where the applicant resolved her grievances without being cognizant that her workplace concerns implicated her human rights. The applicant’s grievance was comprehensive and the applicant could have framed the grievance to include her human rights concerns.

24Further, I do not accept the applicant’s argument that a settlement arising out of a workplace grievance under a collective agreement cannot resolve parallel or ancillary human rights claims. The Tribunal has recognized the jurisdiction of arbitrators to consider and determine human rights issues. The Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights law as if they were part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

25While the applicant acknowledges that a settlement exists regarding the denial of her promotion, she maintains that, but for the President’s discriminatory standards, she would have been promoted to Associate Professor. In her narrative, the applicant expressly emphasized that she is not asking the Tribunal to “overturn” the denial of promotion because she accepts that a settlement was reached. However, the applicant goes on to state that she wants the Tribunal to consider the President’s role in the denial of her promotion because this demonstrates the differential treatment applied to her by the President in comparison to other faculty members.

26The applicant alleges that this allegation vis a vis the President should remain a live issue in her Application. The applicant contends that the unfair denial of her promotion has never been reversed, that she remains an Assistant Professor and her concerns with respect to differential standards were not addressed in the parties’ minutes of settlement.

27The question that arises from the applicant’s constellation of allegations is whether the President’s alleged unfair treatment (as described in item A, which I have found may continue) can also include allegations regarding the applicant’s promotion. In other words, if it is determined that the denial of promotion (item C) cannot continue as part of the Application because of abuse of process, can the President’s role in the promotion process nevertheless proceed as part of item A?

28The documentary materials included a copy of the applicant’s promotion grievance, LUFA-US 2008-06. The content of this document establishes that the grievance contemplated and challenged the President’s role in the promotion process. The grievance form describes “the nature of the claim” to be the “unreasonable and arbitrary denial of promotion to Associate Professor (President’s letter 30 October 2008) after the Faculty Affairs Committee recommended that Professor Corbiere be promoted to this rank”. The description goes on to state that the nature of the grievance includes “[t]he President’s interpretation of the criterion regarding scholarly work is unreasonable and arbitrary...”

29Based on the clear wording of the grievance, there can be no doubt that, in launching this grievance, the applicant intended to impugn the President’s role in the denial of her promotion. In light of the broad scope of the grievance and the parties’ explicit statement that the agreement is a “complete settlement”, I find that the applicant’s allegations regarding the President’s alleged discriminatory standards in the promotion denial are encompassed by the September 3, 2009 Minutes of Settlement.

30Given the applicant’s expressed acceptance that there is a binding settlement regarding the denial of her promotion and the fact that the agreement explicitly states that the minutes are “a complete settlement” of the denial of promotion grievance, I find that the applicant cannot pursue an allegation that the promotion process was discriminatory. In the circumstances, I conclude that it would be an abuse of process to allow any aspect of the applicant’s promotion to proceed as part of the Application. As such, I find that, since the promotion was the subject a grievance settlement, which the applicant accepts as binding, she is precluded from relying on the President’s alleged unfairness in the promotion process as part of her item A allegations against the President.

31In summary, I conclude that any allegations with respect to the denial of promotion are barred by the doctrine of abuse of process. The applicant cannot proceed with item C and any allegations with respect to the President’s role in the denial of promotion cannot be relied upon as part of the outstanding allegations in item A.

Item D

32The respondents submit that the applicant’s allegations with respect to unfair teaching load were also resolved by way of the September 3, 2009 Minutes of Settlement. The respondents highlight that clause 5 of the settlement addressed the applicant’s concerns regarding unfair teaching load by eliminating one six-credit course from the applicant’s workload.

33In the Application narrative, as well as during oral submissions, the applicant acknowledged that the matter of an unfair teaching load was resolved by the parties through the Minutes of Settlement. However, in her oral submissions, the applicant also alleged that she was concerned with the fact that the unfair teaching load followed after her return from sick leave and that this aspect, namely the return from sick leave, was not addressed by the grievance settlement.

34The documentary materials establish that the applicant’s workload was addressed in the Minutes of Settlement and this was expressly confirmed in the applicant’s narrative, wherein she states that the teaching load issue was resolved by the settlement. While the applicant may presently be dissatisfied with how her grievance was resolved, there is, however, no basis for me to conclude that the human rights issues were not, or could not have been, addressed through the grievance process.

35I conclude that it would be unfair to the respondent parties if the applicant was now allowed to restart her teaching load concerns, which were part of the Minutes of Settlement, by shifting the focus from an allegation of unfair workload to a claim about the alleged discriminatory timing of when that workload was imposed. I find that, in the face of the applicant’s clear acknowledgement that the Minutes of Settlement are binding, it is an abuse of process to the extent that the applicant is now attempting to re-frame the same factual circumstances as a different allegation. In addition, I note that there is no evidence before me that in entering into agreement, the parties did not discuss or settle the claim regarding the fact that the disputed teaching load arose after the applicant returned from sick leave.

36Further, prior to the applicant’s elaboration of her concern in oral submissions, it was not obvious from the Application that the applicant was challenging the respondents for imposing an unfair teaching load because she returned from sick leave. While the applicant’s narrative describes, as part of the chronology that she was subjected to an alleged unfair teaching load upon her return to work, the applicant did not link or attribute the unfair teaching burden to the fact she took sick leave. It is also noteworthy that the Application does not cite the ground of “disability”. I find that it would constitute an abuse of process to allow the applicant to revive and re-characterize the teaching load concern, which was settled as part of the September 3, 2009 Minutes of Settlement, to now introduce a new human rights violation not previously alleged in the Application.

37In summary, I conclude that the applicant cannot proceed with the allegations in item D regarding unfair teaching load because this matter was previously resolved by the parties’ settlement and, therefore, is barred by the doctrine of abuse of process.

Item E

38With respect to the handling of student complaints, the respondents submit that, despite the fact that this allegation does not raise human rights concerns, this issue was also previously addressed and settled to the extent that the applicant withdrew her grievance on the basis that the matter was satisfactorily resolved.

39The applicant alleges that, although the grievance regarding student complaints was resolved and withdrawn, she maintains the resolution reached by the parties did not consider her right to due process in the handling of student complaints. The applicant alleges that her current allegation to the Tribunal relates to the lack of due process.

40Based on a review of the documentary evidence, I find that the applicant is barred from pursuing the allegation that she was denied due process in the handling of the students’ complaints because this matter was previously resolved and treated as concluded between the parties. The documentary materials included a series of letters exchanged by the parties and the applicant’s union following the filing of the applicant’s grievance. Contrary to the applicant’s assertion that her concern regarding lack of due process was not a feature of the past grievance, these letters reveal that that the applicant’s claims of lack of due process were raised in the grievance the parties resolved and accepted as concluded.

41The documentary materials indicate that the applicant’s grievance arose out of the fact that the parties disagreed about the process for handling student complaints. This disagreement resulted in the respondent university issuing a written reprimand of the applicant for her alleged lack of cooperation in the process. The applicant, through her union, filed an unjustified reprimand grievance (LUFA-US 2009-03) in relation to the events surrounding the student complaints. The grievance describes the nature of the claim to be “an unjustified reprimand because Dr. Corbiere was not accorded due process” and further states that the respondents “failed to ensure that appropriate procedures were followed”.

42Ultimately, after step 1 of the grievance process, the parties engaged in discussions which culminated in a resolution. The resolution agreed upon by the parties involved the removal of the letter of reprimand from the applicant’s personnel file, a mutual understanding of the complaints process and the withdrawal of the grievance. The applicant confirmed in writing to the respondents that her grievance was “resolved” with the withdrawal of the reprimand letter. The respondent university confirmed in writing to the applicant and the union that the matter was resolved and that it had withdrawn the reprimand letter. Subsequently, the union also confirmed in writing to the respondent university, copied to the applicant, that with the removal of the reprimand letter, “the grievance has been resolved satisfactorily and will not be referred to arbitration.”

43Notwithstanding this agreement between the parties, the applicant seeks to put the same factual allegation before the Tribunal because she alleges that the resolution did not address her concerns of her right to due process. Contrary to the applicant’s claim that the grievance did not address her concerns about due process, it is clear from the face of the grievance document that the issue of due process was at the heart of the grievance. As previously noted, the grievance describes the nature of the claim as “...an unjustified reprimand because Dr. Corbiere was not accorded due process.” The grievance also specifically alleges that the respondents “failed to ensure proper procedures were followed.” I find that this documentary evidence unequivocally establishes that the student complaints grievance did include the applicant’s concerns about due process.

44The evidence further establishes that the applicant withdrew the student complaints grievance after the parties agreed to a final resolution based on the removal of the letter of reprimand from the applicant’s personnel file, a mutual understanding of the complaints process and the withdrawal of the grievance. The parties and the union exchanged correspondence confirming the circumstances alleged in the grievance were resolved and concluded upon the respondent university’s removal of the letter of reprimand and the union’s withdrawal of the grievance. As such, there is no dispute that the applicant accepted that the grievance was “resolved” and her union also confirmed, on her behalf, that the grievance was satisfactorily resolved and would not be referred to arbitration.

45Based on the foregoing documentary evidence, I find that the parties understood that the removal of the reprimand letter addressed the applicant’s student complaints grievance and that there would be no further action taken with respect to this matter. In fact, the documents exchanged by the parties speak to closure and resolution of the matter.

46I am satisfied that, notwithstanding the absence of minutes of settlement, it would be unfair to permit the applicant to proceed with the allegation pertaining to the handling of student complaints given her and the union’s clear acceptance and written confirmation that the grievance was satisfactorily resolved. This case is distinguishable from the situation where a grievance is withdrawn because the applicant is dissatisfied with the grievance process and opts to pursue recourse elsewhere. In this instance, the parties understood and agreed upon the process for handling of student complaints and that this agreement, along with rescinding the reprimand letter, satisfactorily resolved and concluded the applicant’s grievance.

47In my view, in the circumstances of this case, it would be an abuse of process to allow the applicant to pursue the student complaints allegation. There is no doubt that the applicant derived a benefit from the grievance resolution and the respondents should be entitled to rely on the applicant’s and her union’s agreement as a final resolution of this matter. The Tribunal has repeatedly stressed the importance of upholding the finality of settlement agreements and, although the resolution and cessation of the grievance was agreed to by the parties in an exchange of correspondence and not a memorandum of settlement, I see no indication that the parties considered the arrangement to be anything other than a full and final resolution of the grievance. As a result, I find that it would be an abuse of process to allow this part of the Application to proceed in the face of the resolution agreed to by both parties and the applicant’s union.

48In summary, I find the parties accepted that the issue of students’ complaints as set out in item E was concluded and appropriately dealt with and, in these circumstances, it would be an abuse of process for this previously resolved claim to continue as live allegations before this Tribunal.

Item F

49The respondents submit that the applicant’s allegation with respect to being unfairly deducted $500 overload pay was also resolved by Minutes of Settlement dated June 15, 2009, which required the respondents to provide the applicant with full reimbursement. The respondents provided a copy of the Minutes of Settlement.

50The applicant made limited submissions with respect to this issue other than to allege that the original pay deduction was unfair and further evidence of the President’s ongoing hostile and harassing conduct towards her.

51The expressed language of the June 15, 2009 memorandum twice notes that the agreement is a “full and complete settlement” of the applicant’s complaint regarding the overload pay.

52I find that, considering the clear language of the June 15, 2009 Minutes of Settlement, it would be unfair to permit the applicant’s allegations about the overload pay deduction to continue. I conclude the parties agreed that the settlement was final and binding and find that proceeding with the overload pay deduction allegation would be an abuse of process. As discussed with respect to item C, I further find that the applicant may not rely on overload pay deduction allegation as part of her item A harassment allegations against the President.

53I recognize that the June 15, 2009 and September 3, 2009 Minutes of Settlements and letters of understanding relied on by the respondents in this case do not contain a typical “release” clause or release addendum. Nevertheless, as was the case in Messiah, supra, I do not find that the absence a “release” is determinative of the issue of whether it would be an abuse of process to continue with certain allegations made in the Application.

54I am satisfied that, considering the nature of the grievances and the resolutions and settlements, the applicant is precluded from pursuing certain aspects of this Application. I find that, given the circumstances in this case, it would be unfair to permit the allegations contained in items C, D, E and F to continue. For clarity, because of concerns of abuse of process, the Application cannot proceed with respect to any allegations in the narrative regarding the denial of promotion to Associate Professor; an unfair teaching load in 2009-2010; the handling of student complaints about the applicant in 2008-2009; and the deduction of overload pay in 2009.

ORDER

55Accordingly, the Tribunal orders that paragraphs 6, 8-28 and 30-31 of the applicant’s narrative be struck from the Application and that the Application will proceed only with respect to the allegations in paragraphs 1-5, 7, 29 and 32-35.

56I am not seized.