Sikorski v. Vaughan (City), 2015 HRTO 1740

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jan Sikorski

Applicant

-and-

The Corporation of the City of Vaughan

Respondent

-and-

Canadian Union of Public Employees and its Local 905

Intervenor

DECISION

Adjudicator: Keith Brennenstuhl

Date: December 29, 2015

Citation: 2015 HRTO 1740

Indexed as: Sikorski v. Vaughan (City)

APPEARANCES

Jan Sikorski, Applicant

Self-represented

The Corporation of the City of Vaughan, Respondent

Nancy Salerno, Counsel

Canadian Union of Public Employees and its Local 905, Intervenor

Devon Paul, Counsel

1In a Case Assessment Direction issued on March 11, 2015, the Tribunal directed, on its own initiative, that a telephone preliminary hearing be held on whether the Application should be dismissed in whole or in part, pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), because another proceeding has appropriately dealt with the substance of the Application.

2The preliminary hearing was held by telephone conference call on June 25, 2015. All the parties were in attendance.

3The Application is dismissed.

4Section 45.1 of the Code states that: “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”.

5In his Application the applicant alleged that the respondent, who had been his employer, wrongfully terminated his employment because of a work-related illness, his complaints about the workplace and because he made a WSIB claim.

6A grievance proceeding was initiated by the applicant’s Union based on Article 3.01 of the Collective Agreement which states in part that the:

Union acknowledges that it is exclusively the function of the Corporation to:

(b) hire, discharge, direct classify, transfer, promote, demote, layoff, and suspend or otherwise discipline employees subject to the provisions of the Agreement provided that a claim of discriminatory promotion, demotion or layoff or that an employee has been suspended or discharged without just cause may be treated as a grievance as provided under the Grievance Procedure.

7The allegations in support of the grievance were the Applicant’s claims that he improperly lost his employment because he suffered a work-related illness and that he complained about the workplace, essentially the same allegations as are raised in the Application.

8The Union exercised its authority and settled the grievance at the third stage grievance meeting on the basis that the applicant would not return to work but would get a lump sum payment equal to 28 weeks of pay. Minutes of Settlement were signed by the Union and the Respondent on February 4, 2014.

9In March 2014, the applicant received the Minutes of Settlement and a cheque representing the lump sum payment. The applicant indicates that he did not sign the Minutes of Settlement because he wanted to get more money than the Union negotiated. Nevertheless, the applicant cashed the cheque.

10It is well accepted in the Tribunal’s jurisprudence that settlements of grievances constitute proceedings for the purpose of section 45.1. See, for example, Franze v. Vantage Property Management, 2015 HRTO 156.

11As to whether the settlement of the grievance appropriately dealt with the substance of the Application, it is clear, in my view, that the subject matter of the grievance and the subject matter of the Application are, if not identical, then considerable in their overlap. The grievance invokes the terms of the collective agreement and the Code related discrimination to allege that the applicant’s termination was improper.

12In determining whether a settlement precludes an applicant from pursuing an application under the Code, the analysis has often been under the Statutory Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”) which grants the Tribunal the power to make orders to prevent abuse of processes. However, whether it takes place under the SPPA or s. 45.1 of the Code, which has been found to embody the principles underlying the abuse of process doctrine, 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.

13In this case the applicant is not a signatory to the settlement and therefore arguably has not voluntarily agreed to settle the human rights issues. In my view though, where there is not explicit acceptance of a settlement, it is appropriate to examine whether there was implicit acceptance (see Valmassoi v. Canadian Electocoating Ltd., 2013 HRTO 401 at para. 27).

14In this case the applicant had instructed the Union regarding the parameters of settlement in the Fall of 2013. The substance of the Applicant’s instructions clearly involved the payment of money in exchange for a resolution of all issues. The settlement achieves these objectives. The Union settled the grievance on the basis that the applicant would receive 28 weeks’ pay. The applicant received a copy of the minutes of settlement together with a cheque for 28 weeks’ pay in March 2014. The settlement had a space for the applicant’s signature. He did not sign the document; however, he did cash the cheque and he kept the proceeds. He could have returned the cheque if he was not in agreement with the terms of the settlement but he did not. Taken together, these circumstances suggest an implicit acceptance of the settlement.

15While the applicant may have wished for more money in addition to the 28 weeks’ pay, the statutory test is not whether a party was satisfied with the outcome of the other proceeding, but rather whether the other proceeding appropriately dealt with the substance of the application (Taylor v. Hamilton (City), 2013 HRTO 1591 at para. 20). I am of the view that it did and that it would be an abuse of process to allow the Application to proceed.

16Following the hearing of this matter, the Tribunal released Ma v. University of Toronto, 2015 HRTO 1551. On facts almost identical to this case, the Tribunal determined that there was not an abuse of process and that the application could proceed even though the applicant was in receipt of the settlement money and had not signed the settlement. There are, however, some important distinguishing factors from the case at bar. In Ma the union settled the grievance without the applicant’s knowledge or involvement. That cannot be said here, as the applicant was an active participant in the negotiation process leading up to the minutes of settlement. As for being in receipt of the settlement money, in Ma, the applicant received the settlement money in a passive manner as, unknown to the applicant, it was put into his bank account by way of direct deposit by his employer. The Tribunal concluded that in those circumstances the applicant could not be said to have voluntarily decided to accept the settlement monies. Here, the applicant made an active choice to cash the cheque and retain the settlement money. This was quite voluntary and deliberate on the applicant’s part.

17In Ma Vice-chair Price wrote:

I 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.

In 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 such a choice was either conveyed to the applicant or made by him.

18In this case the applicant made a choice. He cashed the cheque.

19For all of these reasons, the Application is dismissed pursuant to section 45.1 of the Code because I find that its substance has been appropriately dealt with in another proceeding.