Paul v. King Edward Realty Inc., 2016 HRTO 1088

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony Paul

Applicant

-and-

King Edward Realty Inc. c.o.b. OMNI King Edward Hotel

Respondent

DECISION

Adjudicator: Naomi Overend

Date: August 15, 2016

Citation: 2016 HRTO 1088

Indexed as: Paul v. King Edward Realty Inc.

APPEARANCES

Anthony Paul, Applicant

Terry Ramjit and Katherine Brooks, Paralegal

King Edward Realty Inc., Respondent

Mireille Khoraych, Counsel

Introduction

1On November 12, 2015, the Applicant filed this Application alleging discrimination in employment on the basis of race and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleged that the applicant’s employment had been unjustly terminated on November 12, 2014.

2The applicant was a member of Unite Here, Local 75 (the “union”), while employed by the respondent. Two days after the termination of his employment, his union filed a grievance on his behalf. This was eventually settled on June 29, 2015.

3The respondent argues that the Application should be dismissed because (1) it is untimely; (2) the substance of it was dealt with in the arbitration process, so s. 45.1 of the Code applies; (3) it would be an abuse of process to proceed because the applicant signed a full and final release; and (4) it has no reasonable prospect of success. The applicant opposes dismissal of his Application.

decision and analysis

Delay

4Section 34 of the Code states in part:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

5The respondent submits that in order to comply with the requirement to file within one year of the termination of his employment, the Application would have to have been filed on or before November 11, 2015. The respondent was unable to point to any authority that the period of one year was, in effect, one year less a day. I do not agree with counsel’s novel interpretation of the time limit. Accordingly, I find the Application was filed in a timely fashion.

Section 45.1 and Abuse of Process

6The applicant’s union negotiated with the respondent and came up with the terms of the minutes of settlement. The respondent signed the minutes and the union signed on the applicant’s behalf. Although there was an area where the applicant could sign, he did not. The applicant submits he was not satisfied with the terms of the settlement and, therefore, the substance of his Application was not addressed in the grievance process.

7On January 14, 2015, during the grievance process, the grievor (applicant) signed instructions to his union, authorizing it to engage in settlement discussions. He specifically authorized his union to settle if it was able to secure an agreement from the employer (respondent) converting his termination into a resignation for personal reasons. The authorization goes on to state that he is requesting a “financial settlement,” but that “[s]hould a financial settlement not also be part of the settlement I agree that the settlement [conversion to a resignation] is a reasonable one that I support.”

8This authorization also states:

I further understand and agree that I have had the opportunity to consider seeking my own legal advice on this matter and agree that the Union has properly and fairly represented me in the grievance process as contemplated by section 74 of the Ontario Labour Relations Act and any obligations owed to me by the Union under the Ontario Human Rights Code and any and all other employment-related statutes.

9The applicant appended this authorization and the minutes of settlement to his Application. He does not argue that he rescinded or attempted to rescind the authorization prior to the union executing the minutes of settlement more than five months later.

10The minutes of settlement contain the minimum requirements set out in the authorization, as well as ancillary provisions concerning the manner in which references would be handled and a letter of employment. It does not contain a financial settlement.

11In addition, the minutes of settlement contain a release that neither the union nor the grievor (applicant) will initiate any further legal actions, including an application under the Code, in respect of the termination of his employment. The respondent argues that this release has been executed by the applicant and is fully binding on him. However, there is no indication that the applicant ever signed the minutes. Moreover, language concerning a release is not part of the prior-executed authorization.

12It is not necessary to consider the respondent’s argument that a release signed by the union is binding on the applicant and, therefore, this Application is an “abuse of process.” Section 45.1 of the Code 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.

13The applicant engaged in the grievance process, which clearly addressed the “substance” of his Application to this Tribunal, namely the unfairness of his termination. It was resolved on terms that the applicant authorized his union to agree to. It does not matter that the grievance was settled, as opposed to concluded by way of an arbitration decision. As noted by the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at para. 37:

… 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.

14The applicant has not pointed to a factor that would suggest that he should not be bound by this resolution. I appreciate that the applicant would have liked a financial settlement and has turned to this Tribunal in order to obtain one. However, this is not a basis for me to not exercise my discretion under s. 45.1.

15Given my finding that the Application should be dismissed pursuant to s. 45.1, it is not necessary to address whether it had a reasonable prospect of success.

Order

16The Application is dismissed.