HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Amadeo Melendez
Applicant
-and-
City of Toronto, Charles Pringle, Andrew Boszin, Cindy O’Reilly,
Lorraine Burton, Rosanne Rinella and Charlotte Monardo
Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Melendez v. City of Toronto ______________________________________________________________________
WRITTEN SUBMISSIONS
Amadea Melendez, Applicant ) Self-represented
City of Toronto, Charles Pringle, )
Andrew Boszin, Cindy O’Reilly, ) Robert M. Church, Counsel
Lorraine Burton, and )
Rosanne Rinella, Respondents )
Charlotte Monardo, Respondent ) Gail Misra, Counsel
1This Application was filed on October 14, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), and alleges discrimination in employment on the basis of race, place of origin, and reprisal. In essence, the applicant states that he was demoted on October 16, 2008 and that he did not receive appropriate overtime pay
2For the reasons that follow, I find that there is no basis to dismiss the Application in whole or in part pursuant to section 45.1 of the Code. I do not accept that the Application has been appropriately dealt with in another proceeding. I reach no conclusion as to the timeliness of the allegations contained Application. In the circumstances, this issue is best determined at a later stage of the proceeding, with the benefit of a full evidentiary record.
3In an earlier Interim Decision, 2010 HRTO 398, the Tribunal determined that the Application would be deferred pending completion of a grievance process. The Tribunal noted that there were a number of ongoing grievances, at least three of which overlapped substantially with the facts and human rights issues set out in the Application: Grievance Nos. C09-02-9410; C08-05-8911; and C09-05-9572.
4The applicant subsequently delivered to the respondents, and the Canadian Union of Public Employees (the “union”), and filed with the Tribunal, a Request for an Order During Proceedings (“Request”) to re-activate his Application. In a second Interim Decision, 2010 HRTO 2132, the Tribunal indicated that the information before the Tribunal did not confirm that the grievance process had concluded. The applicant’s Request to re-activate his Application was dismissed.
5On January 18, 2011, the applicant delivered to the respondents and filed with the Tribunal a second Request to re-activate his Application. In an Interim Decision, 2011 HRTO 1817, the Tribunal reactivated the Application and directed the respondents to file Responses.
6The union filed a Response on behalf of Ms. Monardo, in which she denies the allegations of discrimination. This respondent states that the applicant is in essence arguing that the union breached its duty to represent the applicant. She states that the applicant has not provided any particulars in support of these allegations and that, in any event, there is no basis for a finding of discrimination. Ms. Monardo asks that she be removed as a personal respondent.
7The remaining respondents (the “City respondents”) have filed a Response in which they deny the allegations of discrimination. They also state that the applicant has provided insufficient particulars and that the Application does not contain any basis to support a finding of discrimination. These respondents seek the removal of the remaining personal respondents. They also argue that the Application ought to be dismissed, because it was filed more than one year after the last alleged incident of discrimination and is therefore outside the limitation period in the Code.
8The parties have been involved in a number of grievances, which can be summarized as follows:
Grievance C09-02-9410 filed in February 2009, alleging harassment. The City denied the grievance at a step three meeting and the union decided not to refer the matter to arbitration;
Grievance C08-11-9272 filed in October 2008, alleges a breach of the collective agreement in failing to promote the applicant. Pursuant to Minutes of Settlement between the City and the union, this grievance was adjourned sine die. The applicant was not a signatory to the minutes of settlement.
Grievance C08-05-8911 filed in May 2008, alleges that the City failed to maintain a discrimination and harassment-free workplace. Pursuant to Minutes of Settlement between the City and the union, this grievance was resolved: the applicant was to be paid for one hour of overtime and the letter of expectation was removed from the applicant’s disciplinary record. The applicant was not a signatory to the minutes of settlement.
Grievance C09-05-9572 filed in May 2009, alleging that the City failed to maintain a discrimination and harassment-free workplace. Pursuant to Minutes of Settlement between the City and the union, this grievance resolved and the letter of expectation was removed from the applicant’s disciplinary record. The applicant was not a signatory to the minutes of settlement.
9In light of these grievance proceedings and the earlier deferral of the Application, I invited submissions from the parties concerning the application of section 45.1. I also invited submissions as to the timeliness of the Application pursuant to section 34 of the Code. In a Case Assessment Direction dated December 15, 2011, I wrote:
Based on the Application, it is not entirely clear how the applicant’s allegations relate to a ground under the Code. At a later stage of the proceedings, it may be appropriate to address whether the applicant’s allegations could form a basis for a finding to discrimination under the Code. The parties have also raised other preliminary issues including production and the removal of personal respondents. These requests may also be dealt with at a later stage in the proceeding.
10All of the parties have filed submissions concerning section 45.1 as directed. Although in their Response, the City respondents request the dismissal of the Application pursuant to section 34, they have not filed further submissions on this issue in response to the CAD.
ANALYSIS
11Section 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.
12For section 45.1 to apply, the respondents must demonstrate that:
a. the grievance is a proceeding within the meaning of the Code; and
b. the grievance has “appropriately dealt with” the substance of the Application.
13The Tribunal’s earlier jurisprudence establishes that settlements achieved in the context of a labour arbitration are “proceedings” for the purposes of section 45.1: Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at para. 37; Healey v. McMaster University, 2010 HRTO 1874 at para. 33 (“Healey”).
14The Tribunal has had occasion to address circumstances where a settlement agreement was reached between an employer and a union, but where (as here) an applicant did not agree to the terms of the settlement or sign the minutes of settlement. The Tribunal has considered whether such a settlement can have “appropriately dealt with” the substance of an Application in, for example, Healey, Bhandari v. Ontario (Education), 2010 HRTO 1676 (“Bhandari”), Lumley v. Trillium Lakelands District School Board, 2010 HRTO 1117 (“Lumley”), and Lemieux v. Guelph General Hospital, 2010 HRTO 1267 (“Lemieux”).
15As pointed out in Bhandari, the Tribunal has adopted somewhat different approaches to the issue. In some cases, it has held that section 45.1 will not apply unless the applicant is a party to the settlement between the union and the employer: see Lumley and Lemieux. In other cases, the Tribunal has held that the fact that an applicant refused to sign a settlement agreement is not conclusive and that it is appropriate to consider other factors in determining whether the applicant implicitly accepted the terms of the settlement such that the Application may not proceed: see Healey and Bhandari.
16For example, in Bhandari the Tribunal considered whether the applicant derived a significant benefit from a settlement agreement to which he was not a party and whether, by his acceptance of that benefit, the applicant could be presumed to have accepted the terms of settlement.
17This becomes relevant because the Tribunal generally dismisses applications where a party has entered into minutes of settlement that address the substance of an application: Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151. It follows that it may also be appropriate to dismiss an application where, although the applicant has not entered into minutes of settlement, he can be presumed, by his implicit acceptance of the benefits of the settlement, to have accepted the settlement agreement: Bhandari. Conversely, where an applicant neither explicitly nor implicitly accepts the terms of a settlement agreement, where these are instead imposed upon him through unilateral measures, there can be no basis to conclude that the settlement agreement was agreed to by the applicant or that it could be a basis for dismissing an application.
18In determining whether an applicant can be presumed to have accepted a settlement agreement, I find it useful to consider not only whether the applicant received a significant benefit, but also whether the applicant had any role to play in the receipt of that benefit. For example it may be relevant to consider whether the applicant actively accepted the benefit, whether he acquiesced to its receipt or whether it was imposed upon him unilaterally.
19I adopt the reasoning in Healey, at para. 51, where the Tribunal stated that, in some circumstances, an applicant’s acceptance of settlement funds may not be determinative of the issue. I echo the concern that to view this factor as determinative would signal that only those people in the enviable position of, for example, being able to reject ongoing payment of their wages at termination would be able to pursue their human rights complaints.
20However, even if in some circumstances, a party’s acceptance of benefits may be an indication of an acceptance of the terms of settlement, the same cannot be said for benefits of settlement that are imposed upon a party unilaterally. The fact that a benefit of a settlement agreement is imposed upon a party cannot be interpreted as an indication of an implicit acceptance of the settlement agreement.
21Applying the principles set out above, I cannot accept that the substance of the Application has been appropriately dealt with in the minutes of settlement.
22The settlement agreements were reached over the applicant’s objections and he was not a party to them. I find that the fact that the applicant was not a party to the minutes of settlement is not determinative of the section 45.1 issue. Instead, it gives rise to a further inquiry into whether other factors exist that establish an implicit acceptance of the terms of settlement. In this regard, I adopt the Tribunal’s reasoning in Bhandari and Healey.
23In this case, it is not clear that the applicant received even a nominal financial benefit from the settlement of one hour’s overtime pay. Rather, the City respondents urge me to conclude that, even though the applicant did not receive any substantial financial benefit as a result of the minutes of settlement, he did benefit from the removal of the letters of expectation. They argue that this is sufficient to engage section 45.1, notwithstanding the applicant’s failure to sign the settlement agreements.
24Based on the materials before me, I find that the applicant did not have role to play in the removal of letters from his disciplinary record. He had no control over his employment record and the removal of letters was a unilateral measure that he did not explicitly or implicitly accept. The fact that the employer purged a document from the applicant’s file does not, in my view, provide a basis for concluding that the applicant implicitly accepted the terms of settlement agreements he refused to sign.
25For all of the above reasons, I find that it is not appropriate to dismiss the Application pursuant to section 45.1. I am not satisfied that the applicant implicitly or explicitly accepted the settlement agreements. Given this, I cannot conclude that the settlement agreements appropriately dealt with the substance of the Application.
26The Tribunal may provide further direction to the parties as to the next steps in this matter.
27I am not seized.
Dated at Toronto this 28th day of February, 2012.
”signed by”
Michelle Flaherty
Vice-chair```