HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
René Laviolette Applicant
-and-
City of Ottawa Respondent
-and-
Canadian Union of Public Employees, Local 503 Intervenor
DECISION
Adjudicator: Geneviève Debané Date: July 4, 2013 Citation: 2013 HRTO 1174 Indexed as: Laviolette v. Ottawa (City)
APPEARANCES
René Laviolette, Applicant Self-represented
City of Ottawa, Respondent Christine Enta, Counsel
Canadian Union of Employees, Local 503, Intervenor Samantha Lamb, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age and disability.
2The respondent filed a Response seeking the dismissal of the Application pursuant to section 45.1 of the Code.
3On November 14, 2013, the Tribunal issued Interim Decision 2012 HRTO 2141, which directed that a preliminary hearing be held to determine whether the Application should be dismissed pursuant to section 45.1 of the Code and/or as an abuse of process and/or on the basis of delay.
4On January 10, 2013, the Tribunal issued Interim Decision 2013 HRTO 42, which granted the Canadian Union of Public Employees, Local 503, (“CUPE”) request to intervene.
5A preliminary hearing was held on April 22, 2013. All of the parties participated at the preliminary hearing. During the conference call, CUPE and the respondent supported the dismissal of the Application.
6The services of a French-English Interpreter were made available to all of the parties.
BACKGROUND
7The Application alleges that in November 2008 the applicant was unfairly accused of not repairing a truck properly. The applicant explained that after this allegation he was reassigned to perform work in the garage, but was not allowed to do his old job on the road. The applicant stated that after that date he was not assigned any further training opportunities. The applicant also states that the respondent no longer recognized his class “A” mechanic license. The applicant continued to work in the garage until September 2010. The applicant was on long-term disability from September 2010 to July 2011.
8CUPE filed a grievance on behalf of the applicant on February 10, 2010 and then an amended grievance on November 18, 2010. These grievances include allegations of harassment and discrimination pursuant to the Code.
9The grievances were referred to arbitration pursuant to the collective agreement and a Board of Arbitration was convened to determine the matter on October 25, 2011.
10On the same date the applicant, the respondent and CUPE entered into Minutes of Settlement. These Minutes of Settlement provide that the grievances are withdrawn and that the applicant will be assigned work in the garage.
11Approximately 8 months later, the applicant then filed the Application with the Tribunal on June 26, 2012.
SECTION 45.1
12Section 45.1 of the Code grants the Tribunal discretion to dismiss an application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. The Tribunal’s jurisprudence has explained that section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere: see Campbell v. Toronto District School Board, 2008 HRTO 62.
13In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at paras. 37 and 38, the Tribunal determined that a grievance settlement was a “proceeding” that comes within the ambit of section 45.1:
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.
DECISION
14I have reviewed the grievances filed by the applicant and it is clear that the issues raised therein form the substance of this Application which include allegations of harassment and discrimination contrary to the Code, with regards to the applicant’s transfer to the garage. In this case the applicant voluntarily entered into Minutes of Settlement to resolve the grievances. Therefore, the substance of the Application was appropriately dealt with during the course of the grievance and arbitration proceeding pursuant to section 45.1 of the Code.
15The applicant is now dissatisfied with the Minutes of Settlement. There is no dispute however, that he voluntarily signed these Minutes and accepted, through his conduct, to comply with its terms. The applicant cannot use this process to resile from his agreement.
16In light of my finding on s.45.1 of the Code, I will not address the issues of abuse of process and delay.
17In these circumstances, the Application is dismissed.
Dated at Toronto, this 4th day of July, 2013.
“Signed by”
Geneviève Debané
Vice-chair