Garry Taylor v. The Corporation of the City of Hamilton and The AIDS Network – Hamilton, 2013 HRTO 1591

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Garry Taylor

Applicant

-and-

The Corporation of the City of Hamilton and The AIDS Network – Hamilton

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: September 20, 2013

Citation: 2013 HRTO 1591

Indexed as: Taylor v. Hamilton (City)

WRITTEN SUBMISSIONS

Garry Taylor, Applicant

Bruce Best, Counsel

The Corporation of the City of Hamilton, Respondent

Dennis Perlin, Counsel

The AIDS Network – Hamilton, Respondent

Kevin Robinson, Counsel

Introduction

1This Interim Decision deals with a Request by the respondent AIDS Network to dismiss this Application in part on the grounds that another proceeding has appropriately dealt with that part of the substance of the Application. The reasons below explain why this Request is granted.

2The applicant filed this Application 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 disability. He alleges the discrimination took the form of harassment at work when he returned to work from a medical leave, as well as discrimination by terminating his employment. After his union grieved his termination he was reinstated.

3The applicant drives a van for the AIDS Network as part of its delivery of harm reduction services to injection drug users in Hamilton. The van is used to hand out clean needles, condoms and other harm reduction paraphernalia to injection drug users. The respondent city funds the program through its public health program.

4The applicant is a former drug user and is currently licenced to use medical marijuana for chronic pain. He alleges that an anonymous written complaint was provided to the respondent city that claimed his driving posed a safety risk because he uses medical marijuana. The applicant maintains that the receipt of this letter set in motion a series of requests by his employer, the AIDS Network, to prove through medical reports that he was safe to drive. He claims that when he complied with the initial request his employer, prompted by the city, asked for more information. He maintains that the stress arising from this situation caused him to go on medical leave in February of 2012.

5Although he found the degree of information requested of him to be intrusive and unnecessary, the applicant states that he complied and returned to work in July of 2012. The applicant claims that his past drug use and his current use of medical marijuana had now become known to his work colleagues, with the result that he was ostracised at work. He also alleges that he was subjected to a disproportionate level of discipline for his reaction to the difficulties he now faced in the workplace. He states that this caused him anxiety and feelings of depression, with the result that in October 2012 he again went on medical leave.

6A few days after going on leave his union filed a grievance on his behalf, alleging harassment, discrimination and bullying from July to October of 2012.

7In December of 2012 the respondent AIDS Network sent him a letter telling him that he was terminated from employment because he had only been authorised to be on leave until November 28, 2012. The letter told him that his failure to come back to work after that date meant that he had abandoned his position. The applicant alleges that the termination was discriminatory. His union filed a second grievance, this one challenging the termination.

8This second grievance was settled at the end of January 2013. The terms upon which it was settled are set out in an email between the representatives of the union and the respondent AIDS Network, as follows:

I am confirming that we have agreed to settle the Garry Taylor Grievance scheduled for arbitration on February 4, 2013 File #A/Z201573) ("Grievance") on the following terms:

1. The Agency shall rescind the letter advising Garry Taylor of the termination of his employment dated December 11, 2013 and will replace that letter with a letter to Garry Taylor confirming that he continues to be employed with the Agency and is currently off work on medical leave.

2. COPE shall immediately advise the arbitrator that the Grievance has been resolved in its entirety.

3. COPE and the Agency shall share the costs of the cancellation of the arbitration hearing equally.

4. This settlement shall be without prejudice or precedent to any other matters between the parties.

9The applicant was not copied on the email and there do not appear to have been any Minutes of Settlement signed by the parties. Both the respondent AIDS Network and the applicant take the position that the applicant continues to be employed by the AIDS Network, although he has not returned to work for medical reasons.

10The union was decertified in March of 2013. While the second grievance had been settled, the first grievance remained outstanding at the time the union ceased to represent the applicant.

the positions of the parties

11The respondent AIDS Network argues that the portion of the Application dealing with the applicant’s termination should be struck out as the settlement of the union’s grievance constitutes a proceeding that appropriately dealt with the substance of this part of the Application. The respondent city takes no position on this issue.

12The applicant argues that the settlement of the termination grievance did not deal appropriately with that part of his Application because it was unilaterally imposed on him. He maintains that he was not a party to the settlement and should have received damages in addition to reinstatement. In support of this he cites Lumley v. Trillium Lakelands District School Board, 2010 HRTO 1117 to argue that as he was not a signatory to the settlement, it should not preclude him from pursuing his remedies before the Tribunal. He also cites Melendez v. City of Toronto, 2012 HRTO 403 to argue that even though he may have received a benefit from the settlement, this alone is not enough to conclude that the settlement is binding upon him.

analysis

13In s. 45.1 the Code provides that 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.”

14There are two issues to be determined here: whether the grievance and its resulting settlement constituted a proceeding within the meaning of s.45.1 and, if it did, whether the settlement appropriately dealt with the substance of this Application.

15The Tribunal has accepted that where a proceeding before another adjudicative body is settled, the settlement can constitute a proceeding for the purposes of s.45.1. In Dunn v Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal noted at para. 37:

…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.

16In this case the parties to the grievance resolved it on terms which saw the applicant reinstated and the costs of the cancelled arbitration hearing shared between the parties. In light of their actions and the principles outlined in Dunn, I conclude that the settlement amounts to a proceeding for the purposes of s.45.1.

17As to whether the settlement of the grievance appropriately dealt with the substance of the Application, it is clear that the subject matter of the grievance and that portion of the Application dealing with his termination are, if not identical, then considerable in their overlap. The grievance invokes the terms of the collective agreement and the Code to allege that his termination while on sick leave was unjust and improper. It is also clear, based on the materials filed, that the applicant was not a signatory to the settlement.

18As is noted in Bhandari v. Ontario (Education), 2010 HRTO 1676 at para. 12, the Tribunal has not been wholly consistent in its approach to the application of s.45.1 where the applicant was not a signatory to the settlement of a grievance. In my view, where there is not explicit acceptance of a settlement, it is appropriate to examine whether there was implicit acceptance (see Valmassoi v. Canadian Electrocoating Ltd., 2013 HRTO 401 at para. 27).

19In this case the applicant derived a significant benefit from the settlement, namely a revocation of the termination of his employment and reinstatement in his job. This was conveyed to him in a letter from the respondent AIDS Network on January 31, 2013. There is no evidence to indicate that upon receiving that letter or in the aftermath of the settlement of the grievance the applicant repudiated or otherwise expressed his dissatisfaction with how it was resolved. The only indication of his dissatisfaction with the terms of the settlement is his submission in response to the AIDS Network’s Request to dismiss part of his Application. In the Application itself the applicant refers to himself as a current employee of the respondent and the applicant’s pleadings take no issue with the respondent’s assertion that it has implemented the terms of the settlement by reinstating him. Taken together, these circumstances suggest an implicit acceptance of the settlement.

20The respondent AIDS Network was entitled to rely on its expectation that the grievance was, in accordance with the email cited above, “resolved in its entirety”. While the applicant may have wished for damages in addition to reinstatement, the statutory test is not whether a party was satisfied with the outcome of the other proceeding, but rather whether the other proceeding appropriately dealt with the substance of the Application. I conclude that it did and that it would be an abuse of process to allow the issue of the applicant’s termination to be relitigated.

order

21The Request of the respondent AIDS Network is granted. The allegation of discrimination in the termination of the applicant’s employment is dismissed as the substance of this allegation has been appropriately dealt with in another proceeding.

22The allegations of harassment and discrimination from July through October of 2012 can proceed in the Tribunal’s process.

23As the parties have indicated a willingness to try mediation, the Registrar is requested to schedule a mediation session to address the remaining allegations.