Mahab-Ur Rahman v. Access Alliance Multicultural and Community Services, 2014 HRTO 1401

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mahab-Ur Rahman

Applicant

-and-

Access Alliance Multicultural and Community Services

Respondent

-and-

United Food and Commercial Workers, Local 175

Intervenor

DECISION

Adjudicator: Kevin Cleghorn

Date: September 19, 2014

Citation: 2014 HRTO 1401

Indexed as: Rahman v. Access Alliance Multicultural and Community Services

APPEARANCES

) Mahbub-Ur Rahman, Applicant ) Digal Haio, Counsel ) ) Access Alliance Multicultural ) Mary Kokosis, Counsel and Community Services, Respondent ) ) ) United Food and Commercial Workers, ) Catherine Davis, Representative Local 175, Intervenor ) )

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of family status (including reprisal or threat of reprisal). The applicant claims that the respondent failed to accommodate him for his family status, specifically that he was denied time off from work to assist his mother with attending necessary medical appointments, including emergency appointments. According to the applicant, the respondent threatened reprisal by way of discipline or termination from employment following his requests for leave to assist his mother at various times.

2In its Response, the respondent alleges that the subject matter of the application was appropriately dealt with in another proceeding. The Tribunal directed that the parties make submissions on whether the application should be dismissed pursuant to section 45.1 of the Code, or as an abuse of process, as set out in the Interim Decision dated November 20, 2013, 2013 HRTO 1930. The applicant’s union, United Food and Commercial Workers, Local 175 (the “Union”), was granted intervenor status in that Interim Decision as well.

Background

3The applicant is an employee of the respondent. He commenced work with the respondent in 2008 and is now classified as a “Settlement Worker”. The respondent is a unionized workplace. The bargaining agent for non-management employees of the respondent (which includes the applicant) is the Union.

4The applicant is the primary caregiver for his mother. His mother has experienced health challenges which required frequent medical appointments, sometimes of an emergency nature. Due to the limitations that the applicant’s mother has in the English language, the applicant has been called upon to translate and communicate information to medical professionals from time to time. He considers it necessary for him to attend all medical appointments to safeguard his mother’s interests. The applicant made requests in 2012 for time off to attend to medical appointments with his mother. The respondent denied some requests, ostensibly on the basis that such requests were not in compliance with Articles 18.01, 18.02 and 18.04 of the Collective Agreement, or required that his absences for such purposes be classified as “personal days without pay”.

5The Union filed two separate grievances on behalf of the applicant; the first dealt with denial of his sick leave on May 17 and 18, 2012, and the second dealt with denial of his sick leave on May 28 and 29, 2012. The applicant alleged that the respondent had violated his rights under the Collective Agreement and subjected him to discrimination on the basis of family status when it had refused his requests for medical appointments/sick leave. In addition, the applicant took umbrage at the request of the respondent for medical documentation to confirm the health status of his mother. Two additional grievances were filed by the applicant.

6The respondent and the Union resolved all grievances on October 3, 2012, and entered into Minutes of Settlement incorporating the terms of that settlement. The applicant received a cash payment of $750.00 and there was a re-working or re-interpretation of the Collective Agreement to resolve the family leave issues, among other terms. The grievances were formally withdrawn at that time. The applicant expressed dissatisfaction with the terms of the settlement and in fact declined to execute the Minutes of Settlement. He did accept the cash payment and now has the benefit of the family leave arrangement which was provided for in the Minutes of Settlement. The Union maintains that proceeding to a hearing would not have resulted in a more favourable outcome for the applicant. The applicant argues that the resolution of the grievances ignored the human rights violations of the respondent. The respondent states that the applicant has expanded family leave provisions which go beyond those accorded to any other employee.

Section 45.1 and Abuse of Process

7Section 45.1 of the Code reads as follows:

45.1 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.

8In Michalczyk v. Sudbury Condo Corp #9, 2012 HRTO 1736, this Tribunal stated at paragraphs 25 and 26:

In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application.

Since the Campbell decision, the Supreme Court of Canada has released its decision in British Columbia (Workers’ Compensation Board) v. Figliola, [2011] S.C.R. 422. This Tribunal has determined that the analysis adopted in Figliola applies in Ontario and binds this Tribunal: see Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at para. 25. As a result, in considering whether the other proceeding appropriately dealt with the substance of an application, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding: Figliola at para. 38.

9Given that the grievance proceeding at issue was resolved by settlement between the parties rather than in a decision, the principle of abuse of process is also applicable. As noted by the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, [2011] S.C.R. 422 at paragraph 24, abuse of process is a principle underlying statutory provisions like section 45.1 of the Code.

10Section 23(1) of the Statutory Powers and Procedure Act, R.S.O. 1990, c. S. 22, provides that a tribunal may make such orders or given such directions in proceedings before it as it considers proper to prevent abuse of its processes. 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 include circumstances such as re-litigation and a previous settlement.

11It is settled law that a settlement reached in a grievance arbitration process is a “proceeding” within the meaning of section 45.1: See, for example, Dunn v. Sault Ste. Marie (City), 2008 HRTO 149; Healey v. McMaster University, 2010 HRTO 1874 (“Healey”). The next question is whether that earlier proceeding appropriately dealt with the substance of the Application: See, for example, Sawnhey v. Law Society of Upper Canada, 2014 HRTO 129. This requires examining whether the same facts and issues were at stake in both proceedings. As discussed below, in this case it also requires a consideration of the impact of the applicant’s objection to the terms of the settlement ultimately reached, and the context of the lack of control that the applicant had in that negotiation. The Union had the authority to settle or not settle the grievances over the applicant’s objection (although there was an appeal process for the applicant to pursue following the settlement).

12The pith and substance of the grievance proceeding involved an interpretation of the Collective Agreement and the remedy that should flow from breach of same, if any. The process specifically contemplated human rights issues as the applicant raised “family status” and consideration of the family leave provisions of the Collective Agreement as the subject matter of the grievance(s). The outcome of that proceeding involved payment of monetary compensation to the applicant and a new arrangement for family leave. The pith and substance of the proceeding before this Tribunal is whether accommodation should have been afforded to the applicant for family leave and if monetary compensation (either in the form of general damages or wage loss) should be paid to the applicant by the respondent. The same facts and issues are present in both matters. Both parties were fully aware of the issues involved in the earlier proceeding and had every opportunity to present its respective position to the arbitrator, if the respondent and the Union had not settled the grievance. The rationale underlying the principle of abuse of process and s. 45.1 of the Code is to ensure that parties are not permitted to re-litigate, or appeal, outcomes which they disagree with or find unfavourable. To allow the process to continue before this Tribunal is to permit exactly that, with the outcome possibly being inconsistent results and/or a remedy being awarded on top of an award of sorts arising from settlement of the grievance. The same human rights issues were unequivocally before the arbitrator in the grievance arbitration process.

13The Tribunal has frequently found that where a settlement or release is executed by an applicant in a related grievance proceeding, allowing a relitigation of the same issues would constitute an abuse of process. It is important to note that in this case there was not a decision per se from another adjudicative body in the sense contemplated by Figliola; rather there was a negotiated outcome in the proceeding which did not involve the applicant’s consent.

14The Tribunal has had occasion to address circumstances where a settlement agreement was reached between an employer and a union, but where an applicant did not sign the settlement. The Tribunal has considered whether such a settlement can be considered to have “appropriately dealt with” the substance of an Application pursuant to section 45.1. or otherwise constitute an abuse of process in several decisions. See, for example, Healey, above, , Bhandari v. Ontario (Education), 2010 HRTO 1676, and Melendez v. City of Toronto, 2012 HRTO 403 (“Melendez”). I note that the Tribunal has in some circumstances refused to presume that an applicant has accepted the terms of a settlement if it is imposed upon him or her unilaterally: see Melendez, above, at paragraph 20.

15In other cases, the Tribunal has held that the applicant’s refusal to sign the settlement does not necessarily mean that the application can proceed. For example, in Rysinski v. Aecon Industrial, 2010 HRTO 340, this Tribunal held, at paragraph 13:

I agree with the rulings in Campbell and Dunn. The grievance process which resulted in the settlement and the application to the OLRB which was dismissed are proceedings within the meaning of the Code. In both the human rights issues which are raised in these Applications were considered. The fact that the applicant is unhappy with the result is not, by itself, sufficient to entitle him to litigate them again before this Tribunal. I therefore exercised the discretion authorized by section 45.1 of the Code and dismissed both Applications.

In these types of cases, the issue which needs to be determined is whether the applicant can be considered to have implicitly accepted the settlement incorporated in the Minutes of Settlement resolving the grievance. See, for example, Bhandari, above, and Park v. Waterloo (Regional Municipality), 2010 HRTO 1604. In Park, it was held that “it would be an abuse of process to allow this Application to proceed in the face of the settlement reached between the applicant’s union and the respondent employer” (at paragraph 8).

16The settlement agreement was reached over the applicant’s objections and he was not a party to it. Since the applicant was not a party to the minutes of settlement a further inquiry is needed 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.

17In Bhandari, even though the applicant’s union signed the Minutes of Settlement and he did not, the Tribunal found that it would be an abuse of process to allow the Application to proceed. The Tribunal noted that each case must be decided on its particular facts, and noted in particular that the applicant derived “significant financial benefit” from the settlement, as his bargaining agent (the union) was entitled to act and resolve grievances on his behalf, and he had already attempted to challenge the union’s actions at the Ontario Labour Relations Board, where it was ruled that the union’s actions were “thorough and fair”. In accepting the significant financial benefit in that case, the applicant could be presumed to have accepted the terms of the settlement, even though his signature did not appear on the Minutes of Settlement. Is $750.00, therefore, a significant enough financial benefit? It is not insubstantial. It is, as well, not an amount that the applicant was guaranteed to receive through the grievance process (if litigated to the end) or following completion of a human rights application. The applicant accepted the money. That fact alone, notwithstanding his indication that he was not in a financial situation to reject the payment, suggests that he implicitly accepted the settlement to some degree.

18In Calvo v. Toronto Public Library Board, 2014 HRTO 955 at paragraph 26, this Tribunal states:

Any benefit conferred on the applicant by the Minutes of Settlement in this matter were all benefits which were within the sole control of the respondent: it communicated with the other employees regarding the reasons for her transfer; it assigned her duties to perform; it scheduled her hours and her days off. I also note that the settlement provisions relating to scheduling and to the assignment of particular duties do not appear to bear a direct relationship with either the grievance or the Application. Finally, the preservation of the applicant’s right to post into another position under the terms of the collective agreement can hardly be understood as a benefit which accrued to her due to the Minutes of Settlement. That was a benefit secured for her by her union in collective bargaining.

This case can be clearly distinguished from Calvo in that the new family leave provisions granted to the applicant were distinct from, and went beyond, what other employees had under the Collective Agreement. It was within the applicant’s control whether to take advantage of those provisions and he was not subject to the whim or control of the respondent in that regard.

19Similarly, in Melendez above, this Tribunal states (at paragraph 17):

This 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.

I find that although the applicant did not acquiesce to the settlement, it is clear that he implicitly accepted it. He obtained a financial benefit and new family leave provisions that expanded his entitlement to additional days of leave that no other employee in his workplace had the benefit of. It was within his control and purview to take that family leave. As such, this case is unlike the circumstances in Melendez. In Melendez it was noted that in some circumstances, an applicant’s acceptance of settlement funds may not be determinative of the issue of whether there was implicit acceptance of a settlement. If the applicant in this case was unable to turn down settlement funds due to financial necessity, and that had been the sole feature of the settlement reached in the applicant’s grievance, I would agree that there would be an insufficient basis for concluding that there was an implicit acceptance of the settlement. That is not the situation however.

20While the applicant may have wished for damages in addition to the settlement terms derived from the Minutes of Settlement which resolved the grievance process, 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. In light of the implicit acceptance by the applicant of favorable terms to him arising from the grievance process, it would be an abuse of process to allow the issues that the applicant raised in the grievance process to be litigated once more in a human rights proceeding.

DECISION

21For all the foregoing reasons, the Application is hereby dismissed pursuant to s. 45.1 of the Code.