Jamela Jagdat v. Vertex Customer Management Canada Ltd., 2013 HRTO 530

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jamela Jagdat Applicant

-and-

Vertex Customer Management Canada Ltd. Respondent

DECISION

Adjudicator: Mary Truemner

Date: March 28, 2013

Citation: 2013 HRTO 530

Indexed as: Jagdat v. Vertex Customer Management Canada Ltd.

APPEARANCES

Jamela Jagdat, Applicant Self-represented

Vertex Customer Management Canada Ltd., Respondent Paul Young, Counsel

Introduction

1This is an Application filed on September 13, 2011, 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.

2This Decision deals with whether the Application should be dismissed under s. 45.1 of the Code because its substance has been appropriately dealt with in another proceeding.

BACKGROUND

3Documents filed by the parties and the applicant’s bargaining agent, Power Worker’s Union (“the union”), indicate that the respondent is a subsidiary of a multi-national corporation that provides, amongst other things, call centre services in many countries, and that, in 2009, the respondent decided to consolidate or centralize some of its administrative services in a foreign subsidiary. The union opposed the change, and, pursuant to its Collective Agreement with the respondent, filed a grievance. The matter went to arbitration which led to an agreement between the respondent and the union. This agreement between the respondent and the union is called a “Statement of Settlement” and is dated December 14, 2010. The union understood that it affected the applicant so that she would be provided with employment at the same wage rate as she received before the change, and that she would not simply be working the phones.

4The applicant was an accounting clerk before her position was eliminated in the consolidation of operations referred to above. The Application alleges that the applicant became ill after the respondent eliminated her position. This allegation does not appear to engage the Code. However, the Application alleges that the stress of the restructuring and the lengthy process of negotiations in finding her an appropriate replacement position created special needs arising from disability that required that she not work primarily on phones. Instead, she needed to be provided with a position that focused on administrative work. The applicant’s position is that her special needs were not being accommodated by the respondent because the work position proposed for her was primarily phone work, and the agreement reached on December 14, 2010 between the union and the respondent did not provide her with the administrative work that she needed in order to be accommodated. She therefore filed her Application on September 13, 2011. Soon after, the union took to arbitration the allegation that the respondent breached the December 14, 2010 agreement. The respondent, applicant and union then negotiated and entered into Minutes of Settlement dated March 22, 2012. The Minutes of Settlement are signed by the applicant, the respondent and the union.

5The Minutes of Settlement include the following relevant paragraphs:

And Whereas the Union filed a grievance on behalf of the Grievor alleging that the company was in breach of [the Statement of Settlement dated December 14, 2010] by not assigning the Grievor to appropriate work, and that the Company had breached its duty to accommodate the Grievor in contravention of the Ontario Human Rights Code in relation to her current work assignment.

… These Minutes of Settlement are entered into on a without prejudice or precedent basis to the positions of the parties in this or any other matter and the Company specifically denies that it has acted contrary to the provisions of the above-mentioned Collective Agreement, Statement of Settlement dated December 14, 2010 or the Ontario Human Rights Code. The Grievance is settled.

Effective April 10, 2012, the Grievor shall be assigned to the regular BCC Team where she will be required to perform the full duties of the position which the parties acknowledge includes performing Back Office Work and answering calls. The union and the Grievor acknowledge that the BCC position meets the Grievor’s current need for accommodation, such as exists. […]

Once she becomes a member of the BCC Team, the Grievor’s future assignments within the Company shall be governed by the provisions of the Collective Agreement, the Statement of Settlement dated December 14, 2010… and/or the provisions of the Ontario Human Rights Code, if applicable.

6On April 13, 2012, after receiving information from the union which indicated that the arbitration proceeding dealing with the applicant’s grievance was settled, the Tribunal issued a Case Assessment Direction. The Tribunal noted that the parties appeared to agree in the Minutes of Settlement that certain accommodation for the applicant is appropriate and will be provided to her. The Tribunal directed the parties to file submissions on whether the Application should be dismissed under s. 45.1 of the Code or as an abuse of process.

7The parties filed written submissions, as did the union (whose submissions were in part adopted by the respondent), and the parties also provided oral submissions at a preliminary hearing. At the preliminary hearing, the applicant confirmed that the allegations with respect to a violation of the Code are in reference to the respondent not having accommodated her disability subsequent to her accounting clerk position having been eliminated.

ANALYSIS

8Section 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.

9The 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.

10The Tribunal has found that the Supreme Court of Canada’s reasoning in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, applies to the interpretation of section 45.1 of the Code: see Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297. In Figliola, supra, the Supreme Court noted that the re-litigation of issues that have been previously decided in an appropriate forum may undermine the public’s confidence in the fairness and integrity of the judicial system by creating inconsistent results and unnecessarily duplicative proceedings.

11For the purposes of section 45.1 of the Code, the Tribunal has held that a “proceeding” need not involve a hearing or an opportunity to make oral submissions and may constitute a settlement. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at paras. 37 and 38, where 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.

12The applicant refers to language originally in the Minutes of Settlement which was removed. In particular, she points to a clause that was struck out and that would have required her to withdraw her Application. She argues that the striking out of this clause demonstrates that it was the parties’ intention to continue the Application at the Tribunal. The respondent does not agree that it was its intention for the Application to continue, and notes that no clause was added to the Minutes of Settlement to clarify that the Minutes of Settlement did not affect her right to continue her Application. The respondent argues that the Minutes of Settlement must be accepted for the language in which they finally appear, and the Tribunal should not inquire into what steps led to the agreement.

13I agree that in this case it is not the Tribunal’s role to dissect the history of the terms of the settlement, and the Tribunal must view the settlement document on its face. As the Tribunal stated in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2009 HRTO 1238 at para. 8:

It is clear that each party had a different view of what it was signing… I must look, however, at the agreement itself and the principles of contractual interpretation.

14The Tribunal must determine under s. 45.1 of the Code whether the substance of the Application, in this case the need for accommodation arising from disability, has been appropriately dealt with in another proceeding. At the preliminary hearing, the applicant agreed that the grievance dealt with her special needs arising from disability, and that they were accommodated in the Minutes of Settlement. The Minutes of Settlement specifically refer to the applicant’s need for accommodation under the Code, and state that the settlement reached meets her need.

15The parties are bound by the language in the Minutes of Settlement they signed, regardless of their differing views of what it was they were signing, and their differing intentions. The language in the Minutes of Settlement makes it clear that the applicant settled a grievance that dealt squarely with the same issue as the Application. Adopting the reasons discussed in Dunn, supra, I am therefore satisfied that the process which led to the Minutes of Settlement signed by the applicant on March 22, 2012 constitutes a “proceeding” that has “appropriately dealt with the substance of the Application” within the meaning of section 45.1 of the Code.

16The Application is dismissed