Rosalie Griffith v. Patrick Knight, 2015 HRTO 1075

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosalie Griffith

Applicant

-and-

Patrick Knight

Respondent

DECISION

Adjudicator: Ken Bhattacharjee Date: August 12, 2015 Citation: 2015 HRTO 1075 Indexed as: Griffith v. Knight

APPEARANCES

Rosalie Griffith, Applicant Melissa Mark, Counsel

Patrick Knight, Respondent Caroline (Nini) Jones, Counsel

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent harassed and discriminated against her with respect to employment because of her sex, and subjected her to a reprisal for claiming her rights under the Code.

2The purpose of this Decision is to decide whether the Application should be dismissed on the basis that a grievance proceeding appropriately dealt with its substance. The parties attended a preliminary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application. The following are my reasons for the dismissal.

BACKGROUND

3The respondent was the Vice-Principal of Westview Centennial Secondary School (“Westview”) in the Toronto District School Board (the “TDSB”) during the 2008-2009 and 2009-2010 school years. He was then the Principal of Westview during the 2010-2011 and 2011-2012 school years.

4The applicant was a teacher and the Curriculum Leader for the English Department at Westview during the 2008-2009 and 2009-2010 school years. She remained a teacher, but was not a Curriculum Leader, at Westview during the 2010-2011 school year. She was on secondment, and was not at Westview, during the 2011-2012 school year. At all times, she was a member of the Ontario Secondary School Teachers’ Federation (the “union”).

5On March 23, 2011, March 24, 2011 and April 8, 2011, the union filed three separate group grievances on behalf of teachers at Westview, which alleged that the TDSB and the respondent had violated the Collective Agreement. The first grievance alleged that the TDSB and a superintendent had failed to conduct an inquiry sufficient to address a broad list of concerns raised about the administration of Westview. The second grievance alleged that the respondent had exhibited a lack of professional conduct. The third grievance, which was filed specifically on behalf of teachers in the English department, alleged that the respondent had poisoned the work environment in the department. The second and third grievances sought remedies specifically with respect to the respondent, including that he complete a counselling and mentoring program, be monitored for up to one year, and be transferred to a different school.

6On April 12, 2011, the applicant filed a complaint against the respondent with the TDSB’s Human Rights Office, which alleged that the respondent had subjected her to gender-based bullying and harassment since 2008, and set out a number of incidents that had allegedly occurred. The Human Rights Office retained an external investigator to investigate the complaint. On November 8, 2011, the investigator issued his final report, which found that several of the alleged incidents had occurred, that the applicant’s gender was a factor in the respondent’s mistreatment of her, and that the respondent had subjected her to reprisals for complaining about him to the previous Principal of the school.

7Two other female teachers also filed complaints with the Human Rights Office, which alleged that the respondent had subjected them to harassment and discrimination based on gender. The second complaint was investigated by the same external investigator, who upheld it in part. The third complaint was investigated by a different external investigator, who did not uphold it, but raised concerns about the respondent’s conduct as a manager.

8On February 2, 2012, the union filed two separate grievances on behalf of teachers at the school, which alleged that the TDSB had violated the Collective Agreement. Specifically, the grievances alleged that the TDSB’s inadequate response to the human rights complaints filed against the respondent placed the union’s members at risk. The grievances sought remedies specifically with respect to the respondent, including that he be disciplined, removed from the school, and required to participate in a growth plan which includes gender sensitivity training. The second grievance specifically mentioned the applicant and another female teacher, and sought restitution remedies for them.

9On May 30, 2012, the applicant filed an Application under s. 34 of the Code with this Tribunal, which alleged that the TDSB and the respondent had harassed and discriminated against her with respect to employment because of her sex, and subjected her to a reprisal for claiming her rights under the Code. Similar to her complaint against the respondent with the TDSB’s Human Rights Office, she alleged that the respondent had subjected her to gender-based bullying, harassment, and abuse since 2008, and set out a number of incidents that had allegedly occurred. She also requested remedies, including monetary compensation for lost wages and pain and suffering, as well as the removal of the respondent from Westview and a requirement that he be given counselling on gender discrimination before he is placed in another school.

10On October 4, 2012, the respondent filed a Response, which denied the applicant’s allegations of harassment, discrimination, and reprisal. He stated that the external investigator’s report should be disregarded because the investigator had a longstanding personal relationship with one of the applicant’s witnesses, which raised a reasonable apprehension of bias.

11On October 5, 2012, the TDSB filed a Response, which denied the applicant’s allegations of harassment, discrimination, and reprisal, and stated that it had taken steps to address the findings in the investigation reports, including drafting and implementing an action plan to address the respondent’s management practices. The TDSB also requested that the Application be deferred pending the conclusion of the grievance proceeding because the facts and issues in the grievances overlap with those in the Application.

12On November 20, 2012, the applicant filed a Reply to the Responses, which, among other things, opposed the TDSB’s request that the Application be deferred pending the conclusion of the grievance proceeding. Specifically, she stated that the grievance proceeding is solely between the parties to the Collective Agreement, namely, the union and the TDSB, while the Application is between the applicant and both the TDSB and the Principal, which means that the Tribunal has the jurisdiction to decide issues of both organizational liability and personal liability, and to issue appropriate remedies against both the TDSB and the Principal, which the arbitrator does not have the jurisdiction to do.

13On November 30, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 2245, which ordered that the Application be deferred pending the conclusion of the grievance proceeding.

14On December 5 and 6, 2012, the TDSB, the union, and the applicant and two other female teachers signed Minutes of Settlement resolving the March and April 2011 and February 2012 grievances. The relevant provisions with respect to the applicant stated:

Whereas the Federation filed… grievances… in relation to the conduct of Principal Patrick Knight… including the Principal’s treatment of the Affected Teachers at Westview Centennial Secondary School during the period from 2009-2012;

And Whereas the parties are now desirous of fully and finally resolving all matters in settlement of the above-listed grievances without prejudice or precedent;

Therefore the parties agree as follows:

1. The above listed… grievances are resolved and withdrawn.

2. Rosalie Griffith shall withdraw HRTO Application No. 2012-11677-I as against the TDSB….

3. The resolution of the above-listed HRTO Application as between the Affected Teachers and the TDSB is without prejudice to the continuing status of any of the Applications as against the Principal as an individually-named party;

4. Effective immediately, the TDSB will work with the Principal to develop and implement a formal growth plan based on the issues identified in the Human Rights complaints investigated at Westview during the period from 2009-2012. The formal growth plan will commence at the earliest possible date during the current school year and will conclude no earlier than June 2016. The formal growth plan will include mentoring, professional development and regular monitoring of the Principal’s progress. During the term of the formal growth plan, and for the duration of the Principal’s first assignment following successful completion of the growth plan, the TDSB will ensure that the Principal is not assigned to the same work site as any of the Affected Teachers;

5. The TDSB shall compensate each of the Affected Teachers as follows:

• The TDSB shall pay Rosalie Griffith human rights damages in the amount of $10,000.

[Emphasis added]

15On December 20, 2012, the applicant filed a Request to withdraw her Application against the TDSB. On January 23, 2013, the Tribunal granted the applicant’s Request.

16On March 6, 2013, the applicant filed a Request to reactivate her deferred Application against the respondent. Subsequently, she also filed a copy of the Minutes of Settlement, but completely blacked out para. 7 which shows that the TDSB paid her human rights damages in the amount of $10,000.

17On October 17, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 1758, which ordered that the deferred Application be reactivated.

18On April 18, 2014, the respondent filed a Request for an Order During Proceeding, which requested that the Application be dismissed on a preliminary basis because the grievance proceeding appropriately dealt with its substance.

19On June 17, 2014, the applicant filed a Response, which opposed the respondent’s Request.

20A preliminary hearing dealing with the respondent’s Request took place on November 18, 2014. I heard the parties’ oral submissions and reserved my Decision. During the hearing, I also ordered the applicant to disclose an unredacted copy of the Minutes of Settlement to the respondent. She complied with this order following the hearing.

ANALYSIS

21Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules of Procedure provide that the Tribunal may 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. This Tribunal has found that the Supreme Court of Canada’s reasoning in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”) applies to the interpretation of s. 45.1 of the Code. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, and Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, upheld in Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085 (Div. Ct.).

22Section 45.1 of the Code is the statutory reflection of the collective principles underlying the common law doctrines of issue estoppel, collateral attack, and abuse of process, which are used as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness. See Figliola, above, at paras. 24-25.

23Section 45.1 of the Code is applicable to both decisions and settlements in another proceeding. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal stated at para. 37:

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.

24At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute. See Figliola, above, at para. 37.

25However, in considering whether the other proceeding appropriately dealt with the substance of an Application, the Tribunal must also consider whether it would be unfair to dismiss the Application because either the prior proceeding was unfair, or, even if the prior proceeding was conducted fairly, it would be unfair to use the results of that process to dismiss the Application. See Penner, above, at para. 39.

26Some of the factors that are relevant in determining whether it would be unfair to use the results of the prior proceeding to dismiss the Application are whether there are provisions in relevant legislation that contemplate parallel proceedings, whether the applicant had a financial stake in the prior proceeding, what the parties’ reasonable expectations were about the impact the prior proceeding would have on their broader legal rights, and whether there are important policy considerations at stake. See Penner, above, at paras. 42-68.

27Section 45.1 of the Code requires a two-part analysis: (1) whether there was another proceeding and, if so, (2) whether it appropriately dealt with the substance of the Application.

28In the case at hand, there was no dispute between the parties that the grievance proceeding was a proceeding within the meaning of s. 45.1 of the Code. As such, the main issue to be decided is whether that proceeding appropriately dealt with the substance of the Application.

29In her submissions, the applicant stated that the Application should not be dismissed on a preliminary basis because the grievance proceeding did not appropriately deal with its substance. She agreed that the substance of the five union grievances filed in 2011 and 2012 and the substance of her human rights Application filed in 2012 are essentially the same. However, she stated, the issues to be decided in the Application are not the same as those addressed in the Minutes of Settlement.

30Specifically, the applicant stated, in the Minutes of Settlement, the TDSB agreed to provide her with compensation for any potential Code violations that it could have been liable for (i.e. the failure to adequately address her complaints regarding the respondent’s conduct, and any vicarious liability it may have held for the respondent’s actions as his employer), and also agreed that the resolution of her Application against it was without prejudice to the continuing status of her Application against the respondent, which meant that it was not assuming liability for his actions.

31I disagree. I find that the grievance proceeding appropriately dealt with the substance of this Application. In my view, the applicant is trying to relitigate what is essentially the same dispute. There is no dispute that the substance of the five union grievances and the substance of the human rights Application are essentially the same. This case turns on the interpretation of the Minutes of Settlement.

32Minutes of Settlement are contracts, and, as such, the same principles of contract interpretation apply. See Precision Remodeling Ltd. v. Soskin, 2008 CanLII 31411 (ON SC) at para. 27. The primary goal of contractual interpretation is to give effect to the intentions of the parties. See Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 CanLII 10 (SCC), [1980] 1 S.C.R. 888 at p. 901.

33The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, and it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face. Unless there is ambiguity in the wording of the document, extrinsic evidence regarding the subjective intentions of the parties is inadmissible pursuant to the parol evidence rule. See Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129 at paras. 54, 55 and 58.

34As the Ontario Court of Appeal explained in Dumbrell v. The Regional Group of Companies Inc., 85 OR (3d) 616, 2007 ONCA 59 at para. 50:

In my view, when interpreting written contracts, at least in the context of commercial relationships, it is not helpful to frame the analysis in terms of the subjective intention of the parties at the time the contract was drawn. This is so for at least two reasons. First, emphasis on subjective intention denudes the contractual arrangement of the certainty that reducing an arrangement to writing was intended to achieve. This is particularly important where, as is often the case, strangers to the contract must rely on its terms. They have no way of discerning the actual intention of the parties, but must rely on the intent expressed in the written words. Second, many contractual disputes involve issues on which there is no common subjective intention between the parties. Quite simply, the answer to what the parties intended at the time they entered into the contract will often be that they never gave it a moment's thought until it became a problem: see Kim Lewison, The Interpretation of Contracts, 3rd ed. (London: Sweet & Maxwell, 2004) at 18-31.

35Regardless of ambiguity, however, courts may have regard to the context or the factual matrix in order to determine the intent of the parties and the scope of their understanding (i.e. contracts are to be interpreted with regard to objective evidence of the context or factual matrix underlying the negotiation of the contract, but without reference to the subjective intention of the parties). See Dunn v. Chubb Insurance Company of Canada, 2009 ONCA 538 at paras. 33-34.

36This Tribunal has adopted the above approach in the context of the settlement of human rights disputes. See Thornton v. Toronto Police Services Board, 2012 HRTO 2412 at paras. 13-14; Ihasz v. Ontario (Revenue), 2011 HRTO 1991 at para. 21; Reyes v. Centric Health Corporation, 2014 HRTO 931 at paras. 10-14; and Shankman v. Eke, 2014 HRTO 1710 at paras. 28-29.

37In my view, the Minutes of Settlement are clear and unambiguous on their face. As such, extrinsic evidence regarding the subjective intentions of the parties is inadmissible pursuant to the parol evidence rule. Therefore, the applicant’s submission about the subjective intentions of the parties as set out in para. 30 above is not admissible.

38When the Minutes of Settlement are read as a whole, it is clear that the purpose of the settlement was twofold.

39The first purpose was to resolve the grievances that the union had filed against the TDSB about the conduct of the respondent. The Minutes of Settlement clearly and unambiguously stated that the union filed grievances in relation to the conduct of the respondent, including his treatment of the applicant and other affected teachers at Westview during the period from 2009-2012; that the TDSB, the union, and the applicant and the two other teachers desired to fully and finally resolve all matters in settlement of the grievances; and that the grievances were resolved and withdrawn.

40The second purpose was to allow the human rights Applications against the respondent to continue. The Minutes of Settlement clearly and unambiguously stated that the applicant and the two other teachers shall withdraw their human rights Application against the TDSB, and that the resolution of the Applications between them and the TDSB was without prejudice to the continuing status of their Applications against the respondent.

41In exchange for the withdrawal of the grievances and the human rights Applications against the TDSB, the TDSB agreed to pay the applicant and the two other teachers “human rights damages”; to implement a four-year growth plan for the respondent, which includes mentoring and professional development on gender harassment and discrimination, and monitoring of his progress; and to ensure that the respondent would not be assigned to the same work site as the applicant and the other two teachers during the term of the growth plan and his first assignment thereafter.

42Based on the clear and unambiguous wording of the Minutes of Settlement, I find that the main legal issue that was settled in the grievance process with respect to the respondent (whether his treatment of the applicant and two other female teachers at Westview during the period from 2009-2012 violated their human rights) is essentially the same as the main legal issue before this Tribunal. The applicant’s submissions completely disregard the fact that the Minutes clearly and unambiguously stated that the grievances about the conduct of the respondent were resolved.

43Although it is true that the Minutes of Settlement provide that the resolution of the human rights Application between the TDSB, the union, and the applicant was without prejudice to the continuing status of her Application against the respondent, the parties in the grievance proceeding cannot fetter this Tribunal’s discretion to dismiss the Application pursuant to s. 45.1 of the Code when it finds that the substance of the Application against the respondent was appropriately dealt with in the grievance proceeding.

44I also find that it is not unfair to dismiss the Application pursuant to s. 45.1 of the Code. The applicant has not alleged that the grievance proceeding was unfair. Furthermore, I find that it is not unfair to use the results of that process to dismiss the Application.

45It is true that the grievance proceeding was only between the union (on behalf of the applicant and other teachers) and the TDSB, while the human rights proceeding is between the applicant and both the TDSB and the respondent. It is also true that the respondent was not a party to the settlement that was reached in the grievance proceeding. However, as the Supreme Court of Canada pointed out in Figliola, above, at para. 37, the previous process does not have to procedurally mirror the one the Tribunal prefers or uses itself in order for the Tribunal to exercise its discretion to dismiss an Application on the basis that the previous proceeding has appropriately dealt with its substance. In the case at hand, the applicant’s allegations against the respondent were resolved in the grievance proceeding, she had a financial stake in that proceeding, and she received monetary and non-monetary remedies in that proceeding. Specifically, she received $10,000 in “human rights damages”; the TDSB imposed a four-year growth plan on the respondent which included gender-sensitivity training and monitoring of his progress; and the applicant was protected from being assigned to the same work site as the respondent for more than four years.

46At the end of the day, it simply does not make sense to me to expend public and private resources on the relitigation of what is essentially the same dispute.

47I am not finding or suggesting that whenever there is a settlement in a grievance proceeding between a union and an employer, and the applicant seeks to proceed with her Application against a manager of the employer who was not a party to the settlement, that the Tribunal should exercise its discretion to dismiss the Application pursuant to s. 45.1 of the Code. Each case will be decided based on its individual circumstances. In the case at hand, after considering the circumstances set out above, I am satisfied that the Application against the respondent should be dismissed because the grievance proceeding appropriately dealt with its substance, and it is not unfair to dismiss it.

ORDER

48The Application is dismissed.