Ma v. University of Toronto, 2015 HRTO 1551

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yuchao Ma

Applicant

-and-

University of Toronto, Michelle Aarts, Rene Harrison and Greg Vanlerberghe

Respondents

INTERIM DECISION

Adjudicator: Sheri Price

Date: November 16, 2015

Citation: 2015 HRTO 1551

Indexed as: Ma v. University of Toronto

WRITTEN SUBMISSIONS

Yuchao Ma, Applicant

Self-represented

University of Toronto, Respondent

Geoff Breen, Counsel

Introduction

1This is an Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that the respondents discriminated against him with respect to employment because of disability by failing to accommodate his disability-related need for a scent-free workplace; subjected the applicant to sexual solicitation or advances; and threatened to reprise and/or reprised against the applicant for claiming or enforcing his rights under the Code, including by laying him off in late 2010.

2In January 2012, on consent of the parties, the Tribunal deferred consideration of the Application pending the completion of grievance proceedings.

3This Interim Decision addresses the applicant’s Request to reactivate the Application, which request is opposed by the respondents, and the respondents’ request that the Application be dismissed under s.45.1 of the Code.

background

4In the Application that he filed with the Tribunal in November 2011, the applicant indicated that some or all of the facts raised in his Application were also part of six grievances filed on his behalf by his trade union, United Steelworkers Local 1998 (“the union”), against his former employer, the University of Toronto (“the University”), which is one of the respondents to the human rights Application. The applicant asked that the Tribunal defer consideration of his Application, pending conclusion of the grievance proceedings.

5On December 1, 2011, the Tribunal issued a Notice of Intent to Defer stating that it had determined that it might be appropriate to defer consideration of the Application and directed the parties to make submissions on the issue.

6The respondents indicated that they agreed that the Application should be deferred pending the completion of grievance proceedings in respect of the six grievances that had been filed by the applicant’s union. The union did not make submissions on the deferral issue.

7On January 20, 2012, the Tribunal wrote to the parties indicating that, on consent of the parties, the Application was deferred “pending the completion of union grievance proceedings.”

8More than a year later, on April 9, 2013, and in keeping with its normal practice, the Tribunal wrote to the applicant, the respondents and the union, seeking an update from the applicant on the status of the union grievance proceedings to which it had deferred. On May 5, 2013, the applicant responded that his grievances were ongoing and asked that the Application continue to be deferred. Based on the applicant’s response, on May 6, 2013, the Tribunal wrote to the parties advising that the Application “remains deferred”.

9Approximately one year after that, on July 22, 2014, the Tribunal wrote to the parties again seeking an update from the applicant on the status of the grievance proceedings to which the Tribunal had deferred. On July 24, 2014, the applicant responded to the Tribunal, as follows:

My union grievance #10-146 (improper organizational change) is still ongoing. I cannot at this time predict when it will be resolved. I wish to continue to defer proceeding with my human rights complaint until further notice.

10Although copied on the correspondence, the respondents did not respond to either the Tribunal’s July 22, 2014 letter seeking a status update or to the applicant’s July 24, 2014 reply to it. The applicant’s trade union did not respond to such correspondence either.

11On July 24, 2014, the Tribunal wrote the parties confirming that the applicant had notified it that the grievance proceeding was still ongoing and, “[a]s such, this Application remains deferred.”

12On March 3, 2015, the applicant emailed the Tribunal seeking an extension of the 60-day time limit for reactivating his Application. According to an email the applicant sent to the Tribunal and the other parties in February 2015, he was informed by the union, during a January 6, 2015 telephone call, that the union had settled the applicant’s outstanding “organizational change” grievance without the applicant’s involvement. The applicant indicated that he was waiting for a letter from the union explaining why it had made the decision to settle that grievance, and that he was seeking an extension that would allow him to request reactivation of his Application for a period of 60 days following receipt of the union’s letter. On March 16, 2015, after being directed to do so by the Tribunal, the applicant refiled his extension request using a Form 10 (“Request for an Order during Proceedings”).

13In their response to the Form 10, the respondents indicated that they opposed the applicant’s extension request and his request to reactivate the Application on the basis of delay. In particular, the respondents took the position that the other proceeding to which the Tribunal deferred had concluded in July 2013, almost 20 months before the applicant’s March 2015 request and that such request was therefore made well outside of the 60-day time period for requesting reactivation provided for in the Tribunal’s Rules. The respondents also took the position that the Application should not be reactivated but rather found to be “barred” by Minutes of Settlement between the University and the union settling the applicant’s “organizational change” grievance.

14In light of the respondents’ position, the Tribunal wrote to the parties on April 21, 2015 indicating that it could not determine the applicant’s extension request separately from the reactivation request. The applicant was directed to file his reactivation request as soon as possible, together with any submissions regarding the delay issue that had been raised by the respondents, so that these issues could be determined by the Tribunal. The respondents were also directed to file certain documents related to the position taken by them.

15On April 28, 2015, the applicant filed a further Form 10 formally requesting reactivation of the Application, and the respondents filed further submissions in response. Both parties have filed the documents and case law upon which they rely, as well.

Submissions of the parties

16While indicating that they would not object to a brief extension of time for the applicant to request reactivation of the Application, the respondents oppose the applicant’s 2015 request to reactivate the Application on the basis of what they submit was substantial delay. The respondents take the position that the applicant’s reactivation request should be denied and the Application should be dismissed because the applicant failed to file a reactivation request within the 60-day time limit set out in Rule 14.4 of Tribunal’s Rules of Procedure, which provides:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

17The respondents submit that the applicant’s trade union filed six grievances on the applicant’s behalf, one of which dealt specifically with the issue of discrimination because of disability (“the discrimination grievance”). The respondents submit that on July 16, 2013, the union withdrew the discrimination grievance, as well as the applicant’s other outstanding grievances, and informed the employer that it had decided to proceed to arbitration with the grievance alleging “improper organizational change”.

18Based on this, the respondents submit that the deadline for the applicant to request reactivation of the Application was 60 days following the July 2013 withdrawal of the discrimination grievance. Since reactivation was not requested until 2015, the respondents submit that the request to reactivate is well out of time and should be denied on this basis.

19For his part, the applicant disputes that the 60-day time limit for requesting reactivation of his Application started to run in July 2013. The applicant submits that the Tribunal deferred consideration of his Application pending the resolution of all six of his grievances, including the “organizational change” grievance, which grievance was not settled until December 2014, without the applicant’s agreement or involvement.

20The applicant submits that the first he heard of his “organizational change” grievance having been settled was during a January 6, 2015 telephone call with the union. The applicant submits that, even at that point, he did not know when his grievance had been settled and that it was not until April 2015 that he found out that his “organizational change” grievance had actually been settled between the University and the union in December 2014.

21The applicant submits that as soon as he learned that his “organizational change” grievance had been settled in January 2015, he contacted the Tribunal about his human rights Application and was told that he needed a letter from the Union so that the “next step” could take place. In other words, as I understand it, the applicant’s position is that he was given to understand by the Registrar’s office that he needed a letter from the Union in order to proceed with a request to reactivate the Application. The applicant submits that, although he requested such letter from his trade union in January 2015, having not received it by March 3, 2015, he requested an extension of time that would allow him to file his reactivation request within 60 days of receiving the union’s letter. In the circumstances, the applicant submits that it would be unfair to hold him accountable for any delay in requesting reactivation of the Application.

22The respondents do not agree with the applicant’s position that the time limit for requesting reactivation only began to run when the “organizational change” grievance was settled. The respondents submit that the withdrawn grievance alleging discrimination on the basis of disability was the only one of the applicant’s grievances that raised the same issues as the human rights Application. The respondents submit that the “organizational change” grievance, which was settled in December 2014, concerned “only whether proper internal procedures were followed in making changes to [the applicant’s] employment position,” but did not concern the alleged motivation for those changes, that is, whether there were discriminatory factors at play. Indeed, the respondents submit that it would have been “entirely inappropriate” for the applicant and the Union to raise issues of discrimination in connection with the “organizational change” grievance, having withdrawn the discrimination grievance in July 2013.

23In the event that the Application is reactivated by the Tribunal, the respondents submit that the application ought to be dismissed under s.45.1 of the Code on the basis of a December 2014 Memorandum of Settlement between the University and the union, resolving the “organizational change” grievance. Specifically, the respondents submit that the University and the union agreed to a settlement of that grievance, pursuant to which the University would pay the applicant a lump-sum amount representing 13 weeks of enhanced severance pay and the University and its employees would be released from all claims arising out of the applicant’s grievances, including claims under the Code. On the basis of this, the respondents argue that the applicant can no longer pursue his 2011 human rights Application against them.

24The relevant wording in the Memorandum of Settlement between the University and the union is as follows:

… this Memorandum of Settlement constitutes full and final settlement of all claims arising out of the Grievances and the [Applicant’s] hiring by and the employment relationship with and the cessation of his employment with the University. It is further agreed that the additional payments to the Grievor under paragraph 1 above are, to the extent necessary if any, in satisfaction of any obligations or liability the University or its employees may have to the Grievor arising from or under any statute including the Employment Standards Act or the Ontario Human Rights Code. The Union also agrees that no further grievances will be filed or pursued to arbitration concerning the Grievor’s employment relationship with and the cessation of his employment with the University.

25The applicant did not sign the Minutes of Settlement and the respondents do not challenge the applicant’s assertion that he did not know about the settlement of his grievance until some time after it had been entered into. Nor do the respondents allege that the applicant agreed to the terms of the Minutes of Settlement per se. However, the respondents contend that the applicant is bound by the Minutes of Settlement and the release they contain because the Union entered into the Minutes of Settlement on the applicant’s behalf and the applicant accepted what they submit was the significant financial benefit that was provided for in the settlement.

26The applicant disputes that the Memorandum of Settlement between the University and the union with respect to his “organizational change” grievance bars him from pursuing his Application under the Code because he had no involvement in the decision to settle his grievance and did not agree to the terms of the settlement, nor did he agree to forego his right to pursue his Application under the Code. The applicant also denies that he “accepted” a payment from the University. He submits that the monies in question were deposited directly into his bank account and he had no choice whether to accept such monies or not. The applicant further disputes that 13 weeks’ pay, less applicable deductions, can be considered a “significant” financial benefit in light of the remedy he is seeking in the Application, which is reinstatement to his job at the University and more than four years of lost wages.

Analysis and decision

Request to Reactivate the Application

27As the respondents point out, pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, requests to reactivate an Application must be made within 60 days after the conclusion of the other proceeding to which the Tribunal has deferred.

28However, the Tribunal has discretion to relieve against the strict application of the 60-day time limit. As the Tribunal explained in Hudson v. Kingston (City), 2013 HRTO 2006, pursuant to its Rules of Procedure, the Tribunal has the authority to lengthen or shorten time limits in the Rules, or waive or vary their strict application in order to ensure the fair, just and expeditious resolution of matters before it. (Rule A4.2 and 1.7; see also Oliver v. South Simcoe Police Services Board, 2012 HRTO 863.) The Tribunal’s Rules also provide that they are not to be interpreted in a technical manner (Rule A3.2).

29Accordingly, there are two issues to be determined with respect to the reactivation request: (1) whether the request to reactivate was delayed, and (2) if so, whether the reactivation request ought to be denied on this basis or whether the Tribunal ought to relieve against the strict application of the time limit and reactivate the Application notwithstanding the delay.

30With respect to the first issue, I do not agree with the respondents that, in order to be timely, the request to reactivate ought to have been filed by the applicant within 60 days of the July 2013 withdrawal of the grievance alleging discrimination based on disability.

31This is because, as the applicant points out, the Tribunal did not defer consideration of the Application pending the completion of grievance proceedings with respect to the applicant’s discrimination grievance only. Rather, it deferred consideration of the Application pending the completion of the grievance proceedings in respect of all six of the grievances filed on the applicant’s behalf by his trade union. Those grievance proceedings did not conclude until December 2014, when the applicant’s trade union settled the applicant’s “organizational change” grievance. Accordingly, it was appropriate for the applicant not to request reactivation of the Application until after the resolution of his “organizational change” grievance.

32There is another reason for not accepting the respondents’ argument that the applicant should have requested reactivation following the July 2013 withdrawal of certain of his grievances. As noted above, the Tribunal wrote to the parties in July 2014 seeking an update as to the status of the grievance proceedings to which it had deferred. The applicant responded by saying that one of his grievances remained outstanding and that he wished for the Application to continue to be deferred. Based on this, the Tribunal confirmed that the Application remained deferred. The respondents did not raise any objection to the continued deferral of the application at that time or suggest that the applicant ought to have requested reactivation following the July 2013 withdrawal of some of his grievances. In my view, having failed to raise any issue or object to the continued deferral of the Application at the relevant time, it is not open to the respondents to now challenge the Tribunal’s continued deferral of the Application, communicated in July 2014: Stanley v. Ontario (Community Safety and Correctional Services), 2013 HRTO 1996.

33For the above reasons, I find that the other proceeding to which the Tribunal deferred did not conclude until December 12, 2014, when the applicant’s last outstanding grievance was settled.

34This, in turn, means that the applicant’s request to reactivate his Application – whether this is considered to have been made on March 3, 2015, when he first emailed the Tribunal and the other parties seeking an extension of the time during which he could request reactivation; March 16, 2015, when he made a formal extension request; or April 28, 2015, when he filed a formal Request to reactivate the Application – was technically late. However, in my view, any delay in requesting reactivation of the Application was relatively minor, particularly given that the applicant did not know that the other proceeding had concluded until January 6, 2015. The fact of the matter is that the applicant communicated with the Tribunal and the other parties about reactivating his Application within 56 days of finding out that the other proceeding to which the Tribunal had deferred had concluded.

35As noted above, the respondents have indicated that they do not oppose a “brief extension” of the time for filing a reactivation request. In light of the fact that the other proceeding to which the Tribunal deferred did not conclude until December 12, 2014, and the earliest the applicant could have requested an extension was January 6, 2015, in my view, a brief extension of the usual 60-day time period is all that would be required to accept the applicant’s reactivation request, whether filed in March or April 2015.

36In any event, I am satisfied that this is an appropriate case in which to exercise my discretion to relieve against the strict time limits in Rule 14.4 of the Rules of Procedure.

37As noted above, on March 3, 2015, within 60 days of finding out that the other proceeding to which the Tribunal deferred was no longer ongoing, the applicant conveyed to the Tribunal as well as to the respondents that he intended to seek reactivation of the Application or at least that he was taking steps to preserve his right to reactivate. Although the applicant framed his March 3, 2015 request as an extension request as opposed to a request to reactivate, and he sent an email instead of using the correct Tribunal form, I am satisfied that in sending his March 3, 2015 email within 60 days of finding out that his “organizational change” grievance was no longer ongoing, the applicant substantially complied with his obligations under Rule 14.3 and 14.4 of the Tribunal’s Rules of Procedure to make a timely request to reactivate. Against that backdrop, it is appropriate to exercise my discretion to extend the time for seeking reactivation in order to accept the applicant’s request. In my view, it would be unfair and overly technical to deny the applicant’s reactivation request based on delay in the circumstances of this case. Such an approach would be inconsistent with the Tribunal’s Rules, which seek to avoid a strict and technical interpretation and application of the Rules, as well as the Tribunal’s mandate to resolve Applications in a manner which is fair and just, as well as expeditious.

38In deciding to exercise my discretion to extend the time for reactivation of the Application, I have considered the respondents’ submission that they have been prejudiced by the applicant’s delay in seeking reactivation. I note that the respondents’ position on prejudice was based on their submission that the Application ought to have been reactivated in or around July 2013. Given that I have found that the Application could not have been reactivated by the applicant until January 2015 at the earliest, and that any delay in seeking reactivation was relatively minor, I am not persuaded that the respondents have been prejudiced by it. There is no concrete, identifiable prejudice to the respondents’ ability to respond to the Application, particularly since the respondents have known about the allegations against them since the Application was filed and were in a position to take steps to preserve their evidence: Oliver, above. Finally, although it is perhaps understandable that the respondents themselves did not seek reactivation of the Application if they believed that continued deferral was a problem, this was an option available to them, as well as the applicant, pursuant to Rule 14.3 of the Rules of Procedure.

39In sum, the respondents’ request that the reactivation request be denied on the basis of delay is denied. I now turn to the respondents’ alternate argument that the reactivation request should be denied and the Application dismissed under s. 45.1 of the Code based on the December 2014 settlement of the applicant’s “organizational change” grievance.

Whether Application should be dismissed based on Minutes of Settlement between University and Union

40As noted above, the respondents submit that the Tribunal should dismiss the Application under s. 45.1 of the Code, which gives the Tribunal the discretion to dismiss an Application, in whole or in part, if it is of the opinion that another proceeding has appropriately dealt with the substance of the application. Section 45.1 states:

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.

41Section 45.1 of the Code is often invoked when the issue in the human rights Application has been determined in another proceeding by an adjudicator with jurisdiction to interpret and apply the Code, including labour arbitrators appointed to determine grievances pursuant to the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A: Thomas v. Revera Retirement Living LP, 2012 HRTO 997. However, as the applicant points out, that is not a basis upon which to dismiss all or part of this Application as none of the applicant’s grievances were determined by a labour arbitrator.

42Rather, the issue in this case is whether, in the Tribunal’s opinion, the substance of the human rights Application was appropriately dealt with by the settlement between the University and the union of one of the grievances, namely, the applicant’s “organizational change” grievance.

43In deciding whether a settlement precludes an applicant from pursuing an Application under the Code, the analysis has frequently been under s. 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), which authorizes the Tribunal to make orders to prevent abuse of its processes. However, whether it takes place under s. 23 of the SPPA or s. 45.1 of the Code, which has been found to embody the principles underlying the abuse of process doctrine, among others, the analysis is essentially the same. The fundamental question is whether the parties to the human rights Application have voluntarily agreed to settle the issues in the human rights Application, such that it would be unfair to permit the Application to continue.

44Thus, cases in which an applicant has attempted to pursue an Application after entering into a full and final settlement of the issues raised in the Application and/or fully and finally releasing the respondents from claims under the Code have been dismissed by the Tribunal under s. 23 of the SPPA, s.45.1 of the Code or both.

45However, that is not what occurred in this case. The applicant is not a party to the Minutes of Settlement which the respondents submit “appropriately dealt with” the substance of his human rights Application, nor did he agree to the terms of the settlement or to release the respondents from any legal liability they might have to him under the Code. Indeed, according to the applicant, at some point in 2013, the applicant explicitly refused to settle his organizational change grievance on the basis that was accepted by the union without his knowledge or involvement in December 2014. In any event, the important thing is that, based on the parties’ submissions, there is no reason to conclude that the applicant agreed to the terms of the settlement, either explicitly or implicitly. In my view, this is dispositive of the respondent’s request. There is no basis for the Tribunal to dismiss the Application under s.45.1 of the Code where the settlement has not been agreed to by the applicant.

46The respondents contend that the Tribunal ought to find that the applicant is bound by the Minutes of Settlement between the University and the union, and the release contained therein, in the name of finality. Specifically, the respondents submit that the University entered into a settlement with the union with the “intent of achieving finality”. They submit that it would be unjust for the applicant to have accepted the payment made by the University in exchange for finality, and for the applicant to then “revoke the finality”.

47Certainly, I agree with the respondents that finality in settlements is important. However, a settlement is not final and binding upon a party unless it is also voluntary. This is axiomatic. It is precisely because a settlement represents the voluntary agreement of the parties that it will be upheld and enforced. The fundamental importance of voluntariness to the enforceability of contracts is underscored by the existence of a number of common law doctrines that render contracts, including settlement agreements, void or voidable when they do not reflect the voluntary agreement of the parties (e.g. duress, fraudulent misrepresentation, undue influence, etc.)

48Thus, in the oft-cited case of Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 (“Dunn”), the Tribunal emphasized that settlements of human rights proceedings will be final and binding on parties who choose to resolve the matter voluntarily. The Tribunal stated at para. 35:

There is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end. This is a fundamental principle that should guide the Tribunal in the interpretation of s. 45.1, because to do otherwise could make the finality of settlements highly uncertain.

49The reasoning in Dunn was applied by the Tribunal in Lemieux v. Guelph General Hospital, 2010 HRTO 1267. In that case, the Tribunal found that the settlement of a grievance between the applicant’s union and employer did not preclude the applicant from pursuing her Code Application with respect to the same issues as the grievance, because the applicant did not agree to the settlement. The Tribunal found, at para. 18, that “the consent of the applicant is a requirement for the application of section 45.1.” In my view, the Tribunal stated the correct approach to such cases at para. 19-20 of its decision in Lemieux:

… The applicant’s human rights complaint has not been adjudicated and the settlement that concluded the arbitration process was not accepted by the applicant. It is important to recall that the union had carriage of the grievance. The applicant is technically not a party to the arbitration and although the grievance alleges a violation of rights of the applicant, the legal reality is that a grievance is only partly about the rights of the individual grievor. The union as the statutory bargaining agent has obligations that transcend the individual members’ rights and may in some circumstances conflict with the individual rights of its members. The union, having carriage of the grievance can have regard to these collective interests in prosecuting the grievance, subject only to its statutory obligation to fairly represent the grievor. However, as the law stands now the duty to represent a grievor fairly allows the trade union to consider factors beyond the rights of the individual grievor.

It seems to me an untenable proposition to conclude that section45.1 can be applied where the substance of the application was settled over the objection of the grievor/applicant. To be clear, an applicant/grievor can settle for any reason she chooses and on any terms she chooses. To my mind these choices can have little or nothing to do with the human rights issues. The key fact being whether there is evidence that the applicant/grievor accepted the settlement and therefore intended that she finally resolve her disputes with the respondents. In the absence of some evidence of consent on the part of an applicant/grievor I cannot conclude that the substance of this Application has been appropriately dealt with pursuant to section 45.1 or that it is an abuse of process.

50Returning to the case at hand, and as noted above, even assuming all of the facts alleged by the respondents to be true, there is no basis for finding that the applicant voluntarily agreed to a bargain whereby he released the respondents from liability under the Code in exchange for the payment of 13 weeks’ enhanced severance pay. It certainly appears that the Union agreed to give up any rights it had to pursue any grievances concerning the applicant. However, this agreement between the University and the union, insofar as the applicant did not voluntarily agree to it, cannot preclude the applicant from pursuing what it is by now trite to say are his quasi-constitutional rights under the Code.

51Moreover, I am not persuaded that allowing the Application to proceed would be tantamount to allowing the applicant to “revoke” the finality of the settlement between the union and the University. The applicant cannot “revoke” the finality of a settlement he did not agree to in the first place. Nor am I persuaded that it would be unjust to permit the Application to proceed in the circumstances. Rather, in my view, it would be manifestly unjust to prevent the applicant from proceeding with his Application, based on a purported release of his rights under the Code that he did not agree to give.

52In coming to this conclusion, I have considered but cannot agree with the respondents’ argument that the applicant should be bound by the Memorandum of Settlement between the University and the union because he “accepted” what the respondents characterize as a significant financial benefit that was paid to him pursuant to the settlement agreement.

53By submitting that the applicant “accepted” and/or “readily accepted” the University’s payment, the respondents seem to be invoking the idea that the applicant chose to take the benefit of the settlement in exchange for giving up his right to pursue legal action against the respondents, including the Code Application he had previously filed, which had been deferred and remained outstanding.

54I agree with the respondents that the fact that the applicant did not actually sign the Memorandum of Settlement, though a consideration, is not determinative. I also agree that whether the applicant voluntarily decided to accept consideration in exchange for giving up his right to pursue legal action against the respondents, including an Application under the Code, is key. However, there is no basis to find that the applicant made any such decision in this case.

55I cannot agree that the applicant can be fairly taken to have “accepted” the University’s payment simply because it was deposited in his bank account. In my view, the applicant did not accept the University’s money so much as he received it and did not take active steps to return it to the University. This cannot be fairly characterized as the applicant having acquiesced in or agreed to a bargain that he was not involved in striking, and apparently did not even know about until some time after it was concluded. I do not accept that an applicant who has been given a payment he did not bargain for and to which he did not agree may be found to have given up the ability to vindicate his rights under the Code simply by virtue of having received such payment. In my view, this is consistent with the Tribunal’s decision in Melendez v. City of Toronto, 2012 HRTO 403, at para. 17 to 20, where the Tribunal found that where settlement terms are imposed on an applicant through unilateral measures, as opposed to being explicitly or implicitly accepted by him, there is no basis to conclude that the settlement was agreed to by the applicant or that it constitutes a basis for dismissing an Application.

56In order to establish that by “accepting” the University’s payment, the applicant agreed to the terms of the December 2014 settlement, there would have to be some facts alleged that the applicant was given a choice to either accept the payment and be bound by the Memorandum of Settlement or reject it and not be so bound. In the case at hand, there is no basis to find that such a choice was either conveyed to the applicant or made by him.

57This is not to say that the respondent University has not received the benefit of the finality of its settlement of the “organizational change” grievance with the union. As noted above, that grievance had been referred to arbitration. By settling it, the University avoided that litigation. In addition, pursuant to the signed Minutes of Settlement, the union agreed not to pursue claims against the University relating to the applicant. Presumably, that agreement remains in force and would prevent the union from pursuing claims that fall within the scope of the release it provided in the December 2014 Minutes.

58However, the union can only release the employer from claims that were its to make it the first place, that is, grievances filed pursuant to the collective agreement. The union cannot unilaterally give up the applicant’s right to pursue his Application under the Code, which was filed not only against the University, but also against the personal respondents. Pursuant to s. 34, the right to file an application under the Code rests with the applicant and, in the settlement context, only the applicant can agree to give up the ability to pursue such a claim.

59As for the respondents’ argument that the applicant should be precluded from pursuing his Code Application because it is important to respect settlements between unions and employers, lest a lack of trust and uncertainty ensue, thereby eroding the system for resolving disputes in the unionized workplace, this was addressed to some extent by the Tribunal in Lemieux, above, at para. 21. There, the Tribunal recognized that requiring the applicant’s/grievor’s consent to a grievance settlement before relying on it as the basis to dismiss an Application under the Code might change the dynamics of settlement at arbitration. However, the Tribunal found that that was an insufficient reason to find that a settlement not agreed to by an applicant has appropriately dealt with the substance of an Application under the Code. I agree.

60Finally, in deciding the respondents’ request, I have considered the Tribunal’s decision in Bhandari v. Ontario (Education), 2010 HRTO 1676, which is relied upon by the respondents. First of all, to the extent Bhandari may be read as standing for the proposition that a human rights Application may be dismissed based on a settlement to which the applicant was not a party and did not agree, I respectfully disagree with it. The countervailing, if not prevailing, view reflected in the Tribunal’s jurisprudence, with which I agree, is that the Tribunal will not dismiss an Application based on a settlement between an employer and a union, unless the Tribunal finds that the applicant voluntarily agreed to it. As outlined above, I am not persuaded that the applicant in this case did so.

61In any event, Bhandari is distinguishable from the case at hand in a number of respects. Among other things, in Bhandari, the issues that were settled during the grievance and arbitration procedure appear to have been identical to the issues raised in the human rights Application. That is much less clear in this case, where the respondents submit that the “organizational change” grievance that was settled was totally unrelated to the discrimination and reprisal claims raised in the Application.

62In addition, in Bhandari, the Tribunal’s based its decision largely on its finding that the applicant derived “significant financial benefit” from the settlement and that he was attempting to litigate matters that were settled “to his advantage” by his trade union. In the case at hand, I cannot conclude that the payment to the applicant of an amount representing 13 weeks’ pay was “significant” in the context of a case where the applicant is seeking reinstatement and a number of years’ back pay or that the applicant is attempting to litigate matters that were settled “to his advantage” by the union.

63That said, I am of the view that it is not appropriate for the Tribunal to take into account whether a settlement provides for a “significant” financial benefit in determining whether it should dismiss an Application. In my view, leaving aside those cases where economic duress or unconscionability is established (see, for example, Augustine v. Nadrofsky Corp. (1986), 17 O.A.C. 297 (Div. Ct.)), it is not the Tribunal’s role to uphold and enforce settlement contracts based on its own assessment of whether a particular settlement represents “a good deal”. As explained above, a settlement is binding on parties who agree to it, because they agree to it. Thus, the Tribunal has dismissed Applications based on arguably modest settlements, which have nonetheless been found to be voluntary (Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 at para. 45-48; Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151 at para. 28-29), just as it has refused to dismiss Applications, based on what might be regarded as generous settlements, where the applicant has not agreed to the settlement (Lemieux, above, at para. 17).

64Although I have found that the December 2014 Memorandum of Settlement between the University and the union does not prevent the applicant from pursing the Application, the payment to the applicant pursuant to the settlement may be relevant to the issue of remedy, in the event that liability under the Code is established in this case. Accordingly, at the conclusion of the hearing, if the Application is allowed by the Tribunal, in whole or in part, it is open to the respondents to ask the Tribunal to consider deducting the sum received by the applicant from any award that the Tribunal may be inclined to make at that time.

Orders and DIRECTIONS

65In sum, the Tribunal makes the following orders and directions:

1. The applicant’s request to reactivate the Application is granted.

2. The respondents’ request that the Application be dismissed under s.45.1 of the Code is denied.

3. The respondents are directed to file their full Response(s) to the Application within 35 days of the date of this Interim Decision, indicating, among other things, whether they agree to mediation.

4. If the parties agree, the Tribunal will schedule a mediation in this matter. Otherwise, the Tribunal will set the Application down for a hearing on its merits, starting with two consecutive hearing days.

66I am not seized of this case.