Michelle Reyns v. The Corporation of the City of Timmins-Timmins Fire Department, 2014 HRTO 466

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michelle Reyns Applicant

-and-

The Corporation of the City of Timmins-Timmins Fire Department Respondent

interim decision

Adjudicator: Michael Gottheil Date: April 3, 2014 Citation: 2014 HRTO 466 Indexed as: Reyns v. Timmins (City)

APPEARANCES

Michelle Reyns, Applicant Peter J. Doucet, Counsel

The Corporation of the City of Timmins - Timmins Fire Department, Respondent Michael Kennedy, Counsel

INTRODUCTION

1This Interim Decision addresses a dispute in the interpretation and application of Minutes of Settlement entered into between the parties in relation to an Application under section 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended ("the Code").

2The Application alleged discrimination in employment on the ground of sex, specifically that the Timmins Fire Department refused to hire the applicant as a probationary firefighter because of her gender. Following a Tribunal mediation, the parties entered into Minutes of Settlement in which the respondent agreed to hire the applicant, subject to her meeting certain conditions, including her passing a work-related fitness assessment. The applicant submitted to a fitness assessment, but the parties now disagree as to whether she met the standards contemplated by the Minutes of Settlement. In addition, the parties disagree on whether the applicant should be entitled to pursue her original Application should I find that she did not pass the fitness component of the Settlement.

3The parties each filed an Application for Contravention of Settlement pursuant to s. 45.9(3) of the Code and response submissions. Following a pre-hearing teleconference, it was agreed that the parties would make oral submissions on the interpretation of the Minutes of Settlement. A hearing was held on February 21, 2014. This is the decision following the February 21, 2014 hearing.

BACKGROUND

4In the summer of 2012, the applicant applied for a position as a probationary firefighter with the respondent. The applicant completed all of the prerequisites applicable at the time, and was placed on a hiring list which was valid for one year. The respondent states that no position became vacant during that period, and so the applicant was not hired. The applicant alleged that she was not hired because she is a woman, and filed her s. 34 Application. In her Application, the applicant alleged a number of interactions with, and comments by, senior officials of the respondent, which she claimed demonstrated an anti-female bias and culture at the Fire Department. The respondent denied all allegations of discrimination.

5On June 4, 2013, the parties attended a Tribunal mediation. While no agreement was reached at mediation, shortly afterwards, the parties entered into Minutes of Settlement, which read as follows:

BETWEEN:

MICHELLE REYNS

APPLICANT

And

CORPORATION OF THE CITY OF TIMMINS – TTMMINS FIRE DEPARTMENT

RESPONDENT

MINUTES OF SETTLEMENT

WHEREAS It is the intention of the parties that, subject to the Applicant meeting certain standardized and objective mandatory requirements of a fire fighter, the Applicant shall be employed as a probationary fire fighter by the Respondent in accordance with the Collective Agreement between the Respondent and the Timmins Professional Fire Fighters Association, the parties hereto agree to settle the within proceedings on a final basis on the following terms:

1. The Fire Chief hereby recommends to the City of Timmins, and the City of Timmins hereby accepts and agrees, that the Applicant be appointed as a member of the Timmins Fire Department as a probationary fire fighter, such position to be filled forthwith upon the first occurrence of a vacancy, provided that the conditions as set out in paragraphs 2 through 4 hereof are satisfied by the Applicant.

2. The Applicant shall provide a copy of her current Ontario Driver's License, class DZ and a clear Driver's Abstract to the Respondent.

3. The Applicant shall provide to the Respondent a Criminal Background Check Clearance with Vulnerable Sector Screening.

4. The Applicant shall submit to medical assessment, examination and testing by the regular physician of the Respondent, as set out in Step 5 of Schedule B to By Law 2013-7385 and shall be required to meet the physical/medical Provincial standard requirements of a firefighter as set out in Step 6 of Schedule B to By Law 2013-7385.

5. While the Respondent cannot guarantee when the first vacancy shall occur for a probationary firefighter position, it is anticipated that this shall occur in or about late August of 2013.

6. The Applicant shall be required to accept the first probationary firefighter vacancy with the Respondent as offered to her and may not postpone or prolong her acceptance to a subsequent vacancy.

7. Upon the Respondent employing the Applicant as a probationary fire fighter as set forth herein the within Application shall be dismissed by way of a Form 25.

8. Neither of the parties shall disclose the particulars of the settlement. Each of the parties shall be at liberty to communicate that the proceedings have been resolved amicably and that Ms. Reyns shall be hired as a probationary fire fighter upon the satisfaction of standardized requirements.

9. The resolution of these proceedings is in no way an admission or concession of liability, discrimination, improper conduct or otherwise on the part of the Respondent. In fact, such conduct is specifically denied by the Respondent.

6Paragraph 4 of the Minutes of Settlement made reference to "Step 6 of Schedule B to By-Law 2013-7385." By-Law 2013-7385 is a City of Timmins By-Law which has as its purpose to "establish and regulate a Fire Department in the City of Timmins." Schedule "B" sets out the recruitment process for full-time firefighters, and Step 6 provides as follows:

STEP 6 - FITNESS ASSESSMENT

Every applicant shall be required to complete and pass a Work Related Fitness Assessment as determined by the City of Timmins.

Applicants shall be notified of the date, time and location of this testing. No alternate date will be scheduled,

A Release of Medical and Fitness Information Form shall be attached for signature and must be submitted with the completed application.

The successful applicants shall be eligible to advance to step 7.

7Although the parties entered into these Minutes of Settlement, and signed a Form 25 (which asks the Tribunal to dismiss an application on the basis of a settlement and waives the right to a hearing), neither document was filed with the Tribunal at the time of execution. The Tribunal was not aware the parties had reached a settlement, and scheduled a hearing on the merits for February 5, 6 and 7, 2014.

8Meanwhile, pursuant to the Minutes of Settlement the applicant was directed to submit to a fitness assessment at York University Fitness - Firefighter Applicant Fitness Assessment Protocol ("York"), and contacted the facility to arrange an appointment. The assessment form completed by York indicated that the applicant achieved the ratings of "met standard", "acceptable" and "passed all test components" in the various categories of the assessment. However, the respondent took the position that the standards used by York are in some cases lower than the standards it requires for firefighter applicants, and as the applicant did not meet its standard in respect of the aerobic component of the assessment, refused to permit her to proceed further though the hiring process.

9There is no dispute that the applicant completed all other requirements for being hired as a probationary firefighter pursuant to the Minutes of Settlement. There is also no dispute that the applicant twice previously met the fitness standards (including the aerobic standard) the respondent alleges are required under its hiring process.

10In view of the respondent's refusal to place the applicant on the hiring list in accordance with the Minutes of Settlement, she sought to proceed with the hearing of the merits of the original s. 34 Application. In response, the respondent filed a s. 45.9(3) Application for Contravention of Settlement, asking the Tribunal to dismiss the s. 34 Application and cancel the hearing. In a Case Assessment Direction issued on October 31, 2013, the Tribunal directed that the applicant file a s. 45.9(3) application for contravention of settlement, setting out her position, and that the respondent file a response.

11In the pre-hearing teleconference, the parties agreed to make oral submissions on the interpretation and application of the Minutes of Settlement, in particular paragraphs 4 and 7, and Schedule B to By-Law 2013-7385.

POSITION OF THE PARTIES

12The applicant takes the position that she met the terms of paragraph 4 of the Minutes of Settlement, and is entitled to be hired into the next vacant probationary firefighter position. She attended York as directed by the respondent, and was tested. Her results, as assessed by York, the independent testing facility, were satisfactory.

13The applicant does not dispute that the respondent applied different fitness standards in the past. She argues that those standards were not incorporated into the Minutes of Settlement, and should not be read in or inferred. She notes that the standards that the respondent is seeking to impose were specifically set out in a previous By-Law, which was repealed and replaced by By-Law 2013-7385. The applicant argues that the respondent is attempting to unilaterally and arbitrarily impose a different standard than what was agreed to, and that the whole purpose of the Minutes of Settlement was to remove any arbitrariness from the process and ensure an independent, objective and impartial assessment, particularly in view of the allegations of discrimination she had made in the original Application.

14Finally, the applicant argues that if the Minutes of Settlement contain inconsistencies and ambiguities that cannot be reconciled, I should find the Settlement void, and permit her to litigate her original s. 34 Application.

15The respondent advances a number of arguments in asking that I dismiss the applicant's Applications and uphold its contravention of settlement Application. First, it asserts that a proper reading of the Minutes of Settlement, along with Step 6 of Schedule B to By-Law 2013-7385, supports its view that the respondent has the discretion to establish standards candidates must meet to be eligible for hiring.

16Second, the respondent argues that the standard it is requiring here is the same standard that it has always required - the standard previously set out in the former By-Law. In this regard, the respondent alleges that the applicant knew full well the standard she would have to meet when she entered into the Minutes of Settlement, having twice before been tested against the standard. It denies it is setting an arbitrary standard, but rather says it is the applicant who is trying to introduce a different standard than what the parties had contemplated when they entered into the Minutes of Settlement.

17In further response to the applicant's claim that the respondent is seeking to impose an arbitrary standard, it argues that there is no single "provincial standard." There are a number of testing facilities in the province, and each uses its own standards and criteria for assessing applicants' fitness to be firefighters. It also notes the York assessment form specifically acknowledges that municipalities may set different criteria, and require higher standards than those used by York.

18Finally, the respondent states that if I find that the Minutes of Settlement should be interpreted as the applicant asserts, it will seek to call evidence from the physicians at York, to establish that the applicant did not in fact "pass" the fitness assessment.

DECISION AND REASONS

19At the outset, I find that the parties entered into a settlement of the s. 34 Application and, pursuant to s. 45.9(1), that settlement is final and binding on the parties. There is no suggestion of coercion, or that some other aspect of the process leading up to the settlement suggests the parties had not in fact reached an agreement. Both parties assert that the Minutes of Settlement were intended to be a full and complete resolution to the s. 34 Application.

20It will be an extremely rare situation where the Tribunal will find a voluntary settlement which meets the conditions of s. 45.9(1) to be void. Difficulties or disagreements in the interpretation of a settlement, or allegations of ambiguity or inconsistency in terms will not be sufficient to declare a settlement void, and permit the parties to litigate the original application. Where disagreements arise, a party may file an application for contravention of settlement (as both have done here), and the task of the Tribunal will be to determine the meaning of the settlement entered into, and its application in the circumstances that have arisen. I am satisfied the Minutes of Settlement meet the requirements of s. 45.9(1), and therefore declare the original Application to have been settled. I will now consider the contravention of settlement Applications.

21The issue to be decided turns on the words the parties used in their Minutes of Settlement. Both parties referred me to a number of authorities, but agreed on the fundamental principles of contract interpretation which are applicable in the present case. These include:

a) The intention of the parties is to be discerned from the words of the contract;

b) In interpreting a contract, one should not generally have reference to extrinsic evidence, and in particular, bargaining history (the parties here agreed that I should not have reference to their negotiations leading up to the settlement);

c) A contract should be read as a whole, and specific words and phrases should be read in the context of the whole agreement;

d) An interpretation that gives meaning and effect to all words is to be preferred; and,

e) Specific terms should be taken to modify general terms.

See Canadian Contract Interpretation Law, 2d ed., Geoff Hall, (LexisNexis Canada, 2012) at pp. 15-21.

22In my view, applying these principles to the wording of the Minutes of Settlement, and By-Law 2013-7385, leads to an interpretation that favours the applicant.

23First, the parties did not include specific fitness standards in the Minutes of Settlement, nor do specific standards appear in Step 6 of Schedule B to By-Law 2013-7385. The parties could have set out the specific standards, but did not. At a basic level, accepting the respondent's position requires a reading in of the specific fitness standards that the parties did not include in their agreement.

24Second, while I agree with the respondent that there is no single "provincial standard" for firefighter candidates, and the parties intended to modify the general language of paragraph 4 of the Minutes by incorporating the provision of Step 6 of Schedule B, I do not agree that Step 6 should be read as giving the respondent discretion to set the specific fitness standards against which the applicant was to be assessed. The first part of Step 6 provides that: "[e]very applicant shall be required to complete and pass a Work Related Fitness Assessment as determined by the City of Timmins" (emphasis added).

25I accept the applicant's position that these words should be read as meaning that the respondent is entitled to "determine" which fitness assessment a candidate must "complete and pass", rather than "determine" the criteria or standards to be applied. In my view, the applicant's interpretation gives all the words their plain meaning, in their normal grammatical context. The respondent's interpretation requires one to read the words as meaning that "every applicant shall be required to complete a Work Related Fitness Assessment, and meet the standards as determined by the City of Timmins." The respondent's interpretation does not give the words of Step 6 their plain meaning, in their grammatical context, but requires a re-writing of the phrase.

26Further, it is relevant to compare the wording of Step 6 of the former By-Law with the current wording of Step 6. In By-Law 2003-5781, Step 6 of Schedule B set out the various standards for each component of the fitness assessment. In 2013, when the respondent repealed By-Law 2003-5781 and replaced it with By-Law 2013-7385, it changed the wording of Step 6, and did not include the specific fitness standards. By contrast, Step 2 (swimming test), Step 3 (differential aptitude), and Step 5 (medical) of the current By-Law all retain specific standards applicants must meet. Similarly, fitness criteria for volunteer firefighters in Step 4 of Schedule E to By-Law 2013-7385 set out the specific standards. Thus, unlike other provisions in Schedule B and Schedule E, the respondent removed the specific fitness standards required of full time firefighter applicants in Step 6, and substituted the wording as noted above.

27In view of the words of Step 6, in the context of the entire By-Law, and the wording of the previous By-Law, I find paragraph 4 of the Minutes of Settlement should be interpreted as providing that the applicant was required to complete and pass a fitness assessment chosen by the respondent – in this case, the York fitness assessment. The Minutes of Settlement do not require the applicant to meet the specific standards and criteria set out in Step 6 of Schedule B of the former By-Law.

28I acknowledge that it is evident from reading the Minutes of Settlement that the parties had contemplated the applicant would meet all of the conditions for being placed on the vacancy list. They may or may not have turned their minds to the meaning of paragraph 4 and Step 6 of Schedule B. I accept that the respondent, in seeking to apply the specific standards that it had applied in the past was not being arbitrary or acting in bad faith towards the applicant. However, my task in deciding a s. 45.9(3) application is to interpret the Minutes of Settlement drafted by the parties, giving effect to the words they have used, applying principles of interpretation, and to avoid making assumptions or inferences about what each may have meant when entering into the settlement. In my view, the interpretation that best fits with the plain meaning of the Minutes of Settlement, reading the document as a whole, in its context, and without reading in terms, is that the applicant was to submit to an independent fitness assessment of the respondent's choosing, and was required to pass that assessment.

29As noted above, the respondent asserts that the applicant did not "pass" the York assessment, and seeks to call evidence to that effect. The applicant argued that the assessment form speaks for itself, and the respondent should not be permitted to call evidence.

30I am not in a position at this stage to determine this issue. In the result, I will require the respondent to provide a statement of facts it seeks to establish to support a finding that the applicant did not pass the York assessment, and is therefore not entitled to be considered for hiring. The respondent must also provide a declaration (signed witness statement) from each witness it proposes to call. The respondent must file this material with the Tribunal, and deliver a copy to the applicant, within 30 days of this decision.

31Once this material is received, I will issue further directions.