Calvo v. Toronto Public Library Board, 2014 HRTO 955

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Penny Calvo Applicant

-and-

Toronto Public Library Board Respondent

-and-

Canadian Union of Public Employees Intervenor

INTERIM DECISION

Adjudicator: Maureen Doyle Date: June 27, 2014 Citation: 2014 HRTO 955 Indexed as: Calvo v. Toronto Public Library Board

WRITTEN SUBMISSIONS

Penny Calvo, Applicant Shedrack Agbakwa, Counsel

Toronto Public Library Board, Respondent Sharmila Clark, Counsel

Canadian Union of Public Employees, Intervenor No submissions

Introduction

1This Application alleges discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2This Interim Decision addresses the respondent's request that the Tribunal dismiss this Application pursuant to s. 45.1 of the Code.

DECISION

3For the reasons below, I do not find that it is appropriate to dismiss this Application, in whole or in part, pursuant to section 45.1 of the Code.

Background

4The applicant is employed by the respondent. She alleges that in the course of questioning and accusations regarding her religion over the course of two meetings, she felt shunned, mocked and isolated by her employer because of her religion. She also alleges that with respect to a transfer to a different library branch, the respondent discriminated against her contrary to the Code.

5The respondent denies that it discriminated against the applicant contrary to the Code and offers a different version of events from that provided by the applicant. Further, it submits that the applicant's union filed a grievance on her behalf relating to her transfer to a different location, and it submits that as the applicant's union signed Minutes of Settlement with the respondent, settling the grievance, the Tribunal should dismiss this Application pursuant to s. 45.1 as it has been appropriately dealt with in another proceeding.

6The October 13, 2011 grievance filed on behalf of the applicant by her union reads as follows:

GRIEVANCE: That the employer has violated Articles 2, 16 and any other relevant clauses of the collective agreement by unjustly transferring me from [Branch A] to [Branch B].

REDRESS SOUGHT: That the employer immediately return me to my position at [Branch A], make me whole and any other remedy deemed appropriate by an arbitrator.

7The September 19, 2012 Memorandum of Settlement was signed by the respondent and the union in respect of this grievance, but was not signed by the applicant. The provisions of the settlement included an agreement with respect to her work location, what the respondent employer would communicate to co-workers regarding her transfer, work assignment and scheduling. The Minutes of Settlement indicated that the union was withdrawing the grievance "on a without prejudice basis" and also indicated that the settlement was "without precedent or prejudice to either party in similar matters". It acknowledged the applicant's right under the collective agreement to post into a new position at any time.

[Section 45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

8Section 45.1 of the Code provides as follows:

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.

Submissions of the Parties

9The respondent submits that the grievance cites Articles 2 and 16 of the collective agreement "and any other relevant clause". It refers to Article 2.03 which states:

The Board agrees that it will act in a manner consistent with the provisions of this Agreement and will not act in an arbitrary, discriminatory, unreasonable manner.

10The respondent also refers to Article 16.09 of the collective agreement which at 16.09 (ii) states:

Employees will not be made to transfer from one work location to another in a discriminatory or bad faith manner.

11Finally, the respondent submits that "any other relevant clause" would include Article 4.01 of the collective agreement which states:

The Board and the Union agree that there shall be no discrimination, harassment, interference, restriction or coercion exercised or practised with respect to any employee of the Board in the matter of wages, training, upgrading, promotion, transfer, layoff, discipline, discharge or otherwise, by reason of race, creed, colour, national origin, political or religious affiliation, sexual orientation, sex, age, marital status, family status, handicap, or any other personal characteristics, or because of such employee being an officer, steward, committee member or member at large of the Union.

12The respondent submits that a grievance arbitration process conducted pursuant to the terms of a collective agreement satisfies the requirements necessary to be considered a proceeding. It submits that it "met with the Applicant on February 4, 2013 to discuss her return to [Branch B]. At this meeting, the Applicant asked to review her responsibilities at both locations prior to making a decision". The respondent states that they met again on March 5, 2013 and that on March 6, 2013, the applicant advised that she wanted to remain at Branch B. Upon review of the Minutes of Settlement, the process described by the respondent was not articulated in the settlement and it is not evident that this process was in satisfaction of terms of the settlement.

13In its submissions, the respondent emphasizes the importance of the finality of settlements in a unionized workplace and cited Dunn v. Sault Ste. Marie (City) 2008 HRTO 149 ("Dunn"). It submits that in Dunn, the Tribunal states that it is inappropriate for the Tribunal to engage in a review of the confidential settlement process and at paragraph 43 the Tribunal states it does not have a "general role in supervising mediation processes at other tribunals". It submits that the Tribunal's role is to make an "objective determination as to whether the facts and issues before the Tribunal were settled".

14The respondent notes that the union is the applicant's bargaining agent and "owns the grievance...and is entitled to resolve the grievance on her behalf". It cites Vinay Bhandari v. Ontario (Education) 2010 HRTO 1676 ("Bhandari") and states that just because an applicant is unhappy with a settlement reached by a union and refused to sign the Memorandum of Settlement does not give the applicant the right to litigate the same matters before the Tribunal.

15The respondent submits that though the applicant did not receive a monetary benefit from the settlement in this case, she did not suffer any monetary loss and the settlement was to her advantage, as it "took into consideration the manner in which she wanted her transfer to be communicated to branch staff", and it gave consideration to her request that she not perform certain duties, that she be permitted to leave work at a certain hour on two week days, and that she be allowed to have a particular day as her day off until the next shift selection. It also submits that the Minutes "indicated that she would not be precluded from posting into a position at any time".

16The respondent submits that the absence of the word "release" from the Minutes of Settlement is not significant and cites Messiah v. Snap-on Tools of Canada 2010 HRTO 1151. It submits that releases are generally present in settlements of cases involving termination of employment and that as there was an ongoing employment relationship here, it would not have made sense to include a release in the Minutes of Settlement. They liken this to the situation in Dunn.

17The respondent submits that though the applicant relies in part on the fact that the Minutes of Settlement include the words "without prejudice and precedent", and though she states she had an understanding with the union that she would be free to pursue a human rights application, this was never conveyed to the respondent when the Minutes were signed. It also submits that the phrase "without prejudice and precedent is boilerplate language" and is simply included in order to preclude one party or the other from attempting to rely upon its terms in seeking to resolve a similar situation. The respondent does not indicate how it understood the paragraph in which the union withdrew the grievance "on a without prejudice basis", which is in addition to the paragraph which states the settlement is "without precedent or prejudice to either party in similar matters", which it cites as "boilerplate language".

18The applicant submits that the Application should not be dismissed, in whole or in part, pursuant to section 45.1 of the Code. She submits that the substance of her Application has not been appropriately dealt with by another proceeding. She submits that the grievance did not deal with substantially the same subject matter, as it was not a grievance citing discrimination on the basis of creed. She also submits that the remedy sought at the grievance differed from the one sought in the Application.

19She also submits that she did not agree with the settlement, she did not sign it, the union unilaterally withdrew her grievance over her objections, and she cites Paterno v. Salvation Army, Centre of Hope 2010 HRTO 10 in support of her position that her allegations have not been dealt with appropriately. She notes that the union withdrew the grievance on a "without prejudice" basis, and she cites Shannon v. Renfrew (County) 2010 HRTO 930, submitting that the Application should not be dismissed pursuant to s. 45.1 unless it is clearly shown that the applicant understood and agreed that his or her concerns had been dealt with through the grievance process and that the applicant is no longer free to pursue his or her rights in a different forum.

20She submits that there was no release language contained in the Minutes of Settlement, cites Dunn, and submits that it cannot be said that the settlement forecloses another proceeding.

21The applicant cites Haykin v. Roth 2009 HRTO 2017, paragraph 32 to argue that the respondent bears the onus of proving that the matter was appropriately dealt with at another proceeding, and she submits that it has not done so.

22The union made no submissions regarding the respondent's request to dismiss the Application pursuant to section 45.1 of the Code.

Analysis

23For the reasons which follow, I do not find that the Minutes of Settlement have appropriately dealt with the applicant's allegation of discrimination in her transfer and the respondent's request to dismiss the Application pursuant to s. 45.1 is dismissed in its entirety.

24The respondent relies upon Dunn, a case involving an employee who signed Minutes of Settlement with his union in a matter at the Ontario Labour Relations Board, to emphasize the importance of settlements and the fact that the Tribunal does not play a role in supervising mediation processes in other fora. The decision in Dunn also makes it clear that settlements achieved in the context of certain other fora are "proceedings" for the purposes of section 45.1. This Interim Decision does not deviate from the approach in Dunn, and focuses on the question of whether the facts and issues before the Tribunal have been settled.

25The respondent also relies on Bhandari as an example of a case where, 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 proceed with the Application. 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.

26Here, the applicant has not signed the Minutes of Settlement, nor has she by her actions indicated that she has implicitly accepted its terms. 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.

27Though the parties did not refer me to Melendez v. City of Toronto 2012 HRTO 403 ("Melendez"), I find its reasoning compelling, in light of similar factual considerations. In that case, the applicant did not sign Minutes of Settlement which provided him with overtime payments and removal of discipline from his file, the Tribunal considered its jurisprudence regarding the application of section 45.1 where there are Minutes of Settlement which the applicant has not signed, and stated as follows at paragraph 17:

..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. Conversely, where an applicant neither explicitly nor implicitly accepts the terms of a settlement agreement, where these are instead imposed upon him through unilateral measures, there can be no basis to conclude that the settlement agreement was agreed to by the applicant or that it could be a basis for dismissing an application.

28Here, as in Melendez, as any benefits to the applicant contained in the Minutes of Settlement were imposed unilaterally upon her, I do not find that there is a basis upon which I can conclude that the applicant implicitly accepted the terms of the Minutes of Settlement which she did not sign.

29Accordingly, I do not find that the settlement agreement appropriately dealt with the substance of this Application.

ORDER

30The Tribunal orders as follows:

1. The respondent's request to dismiss this Application pursuant to s. 45.1 is denied.

2. This Application will continue in the Tribunal's process.

31I am not seized.