Human Rights Tribunal of Ontario
B E T W E E N:
John Weber
Applicant
-and-
Simcoe County District School Board
Respondent
INTERIM DECISION
Adjudicator: Bruce Best
Indexed as: Weber v. Simcoe County District School Board
APPEARANCES
John Weber, Applicant
Jamie Lynne McGinnis, Counsel
Simcoe County District School Board, Respondent
Lauri A. Reesor, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of age and reprisal contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"). A preliminary hearing was held by conference call on August 4, 2016 to address whether the Application should be dismissed under s.45.1 of the Code on the basis of a settlement in a related grievance.
2For the reasons set out below, I find that the settlement of the grievance has not appropriately dealt with the substance of the Application.
Background
3The applicant is a teacher with the respondent school board. Two high schools were amalgamated, and in May 2015 he learned he would not be assigned to teach at the new Orillia Secondary School (the "new school"). The applicant's union, Ontario Secondary School Teachers' Federation ("the union") filed grievances on behalf of a number of teachers, including the applicant, who were not reassigned to the new school. The grievances, which included allegations of age discrimination, were scheduled to be heard in December 2015 and the parties consented to deferral of the Application pending resolution of the grievances. It is not disputed that the Code issues in the grievances were essentially the same as the allegation respecting age discrimination in this Application.
4The respondent school board and the union entered into minutes of settlement on January 12, 2016, which provided as follows:
The following teachers from OD/Park Secondary School who did not obtain a position at Orillia Secondary School shall:
a) be granted a right-of-recall for a period of 2 calendar years effective the date of execution of the Minutes of Settlement to a position for which they are qualified at Orillia Secondary School
b) be paid a lump sum amount of $_______ as general damages for allegations of age discrimination
c) be placed on the board's surplus list prior to the next iteration of the Seniority, Placement, Transfer and Redundancy process if requested by the teacher by March 1st, 2016.
5The minutes were signed by the respondent and the union, but were not signed by any of the individual teachers. The applicant was sent the cheque under para b), but he has not cashed it.
6The applicant indicates that since May 2015 he has been unable to work for the respondent because of a disability, and is currently receiving long-term disability benefits.
Analysis and Decision
7The respondent argues that this Application should be dismissed on the basis of the minute of settlement, either as an abuse of process or under s.45.1 of the Code. That section reads as follows:
45.1 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.
8Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 ("Dunn") held at para. 37 that a settlement in another proceeding can give rise to dismissal of an application under either the common law doctrine of abuse of process or s.45.1 of the Code. As noted in Dunn at para. 22, the analysis is the same in either, and following that decision the Tribunal has generally addressed this issue in the context of s.45.1. It is also well established in the case law, and not disputed in the present case, that a grievance is a "proceeding" for the purposes of s.45.1. The issue then is whether the above settlement has appropriately dealt with the substance of the Application.
Winchester Decision
9One of the other teachers included in the above grievance also had an application before the Tribunal, which was dismissed on the basis of the above settlement; Winchester v. Simcoe County District School Board, 2016 HRTO 927 ("Winchester"). The Tribunal held, at paras. 21-25:
This Tribunal will review the circumstances of the settlement of a grievance to determine whether section 45.1 applies in cases where the applicant is not a signatory to the settlement. In Ma v. University of Toronto, 2015 HRTO 1551, the Tribunal denied the dismissal of the Application under section 45.1 because the union settled the grievance without the applicant's knowledge or involvement and the applicant received the settlement money in a passive manner as a direct deposit in his bank account. In Lumley v. Trillium Lakelands District School Board, 2010 HRTO 1117 and Lemieux v. Guelph General Hospital, 2010 HRTO 1267, the union settled the grievance without the consent or signature of the grievor and the Tribunal denied the dismissal of the Application under section 45.1.
There are distinguishing factors in the case at bar and I find that the MOS has appropriately dealt with the substance of the Application. It is uncontested that the grievance arbitration process dealt with the same facts and subject matter as the Application. The applicant's age discrimination claim was specifically considered and resolved in the MOS and the applicant received financial compensation as general damages specifically for the allegations of age discrimination.
The applicant recognized that he accepted the authority of the OSSTF to negotiate on his behalf. The applicant never voiced an objection to the MOS and in fact cashed the cheque provided as implementation of the MOS. Even though the applicant did not sign the MOS, he was specifically named as a beneficiary of the MOS. In addition to the financial benefits, the applicant was entitled to the right-of-recall and the right to be placed on the respondent's surplus list as described in the MOS, had he decided not to retire.
The applicant's only argument for seeking to proceed with the Application is that he did not receive all that he had hoped for through the MOS. This is not a sufficient reason to justify proceeding with a hearing on the merits where the same issues have already been subject to a full and final MOS. The respondent ought to be entitled to rely on the MOS.
I find that the grievance proceeding appropriately dealt with the substance of the Application.
10The respondent argues that as Winchester deals with the same grievance and the same settlement, the present Application should similarly be dismissed in the interests of consistency in decision making.
11In order to find that a settlement in a grievance can give rise to dismissal under s.45.1, the applicant must have been found to have either explicitly or implicitly accepted the settlement. As stated in Ma v University of Toronto, 2015 HRTO 1551 at para 45:
. . . .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.
12And at para 56:
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 that such a choice was either conveyed to the applicant or made by him.
13Choosing to cash a settlement cheque, in the absence of financial necessity, may be enough for the Tribunal to find implicit acceptance of a settlement. See Rahman v Access Alliance Multicultural and Community Services, 2014 HRTO 1401, at paras. 17 and 19, and Sikorski v Vaughan (City), 2015 HRTO 1740 ("Sikorski"), at para. 14. In Winchester, as in Sikorski, the cashing of the cheque was a key factor in determining that there was implicit acceptance of the settlement. In the present case, however, the applicant did not cash the cheque, which supports his position that he did not accept the settlement.
14In addition to cashing the cheque, the Tribunal in Winchester found that Mr. Winchester obtained some benefit from the non-monetary provisions of the settlement, even though he did not actually take advantage of them as he chose to retire. Mr. Weber, however, is currently on a disability leave, and as such the non-monetary provisions of the settlement did not and do not provide him any benefit. Because he cannot presently work, being put on the surplus list would be pointless. Similarly, even if he were now recalled, he could not accept the position.
15The respondent notes that even though Mr. Weber is currently on a disability leave, this does not mean he will not be able to take advantage of the right of recall should his condition improve. In order to actually realize any real benefit from this provision, however, before January 12, 2018 the applicant would have to become able to work again, and there would also have to be circumstances which would trigger his right of recall under the collective agreement and settlement.
16The respondent relies on the decision in Taylor v Hamilton (City), 2013 HRTO 1591 ("Taylor"), where the applicant had been terminated from his position, but was subsequently reinstated in settlement of a grievance. The Tribunal found, at para 19, that the reinstatement was a significant benefit to the applicant, and found an implicit acceptance of the settlement in that the reinstatement had not been repudiated. In the present case, however, even accepting the respondent's submission that the right of recall in the settlement gives the applicant a benefit beyond what is contained in the collective agreement, such benefit is considerably less than the actual reinstatement attained in Taylor, and in my view is not significant enough to justify dismissal of the Application under s.45.1.
17The respondent further argued that the only reason the applicant is pursuing the Application is because he wants a better result than came from the grievance. If this was the test, however, then every settlement of a grievance would give rise to dismissal under s.45.1, as it is hardly likely that an applicant would reject a settlement in the hopes of obtaining a less favourable result at the Tribunal. This same argument was made in Lemieux, and addressed at paras. 13-16, where the Tribunal noted that had the arbitration concluded in a decision, or (as was found to be the case in Winchester) if the settlement been accepted by grievor, then an applicant would not be able to also proceed with an application in the hopes of obtaining a better result. Where, however, as with Mr. Weber, the grievor has not accepted the settlement, an application should not be dismissed under s.45.1 simply because the applicant is seeking a more favourable result.
18The decision in Winchester relied on the finding that the applicant in that case had implicitly accepted the settlement by cashing the cheque, and had not raised any concerns about the settlement. In the present case, I cannot find that Mr. Weber has either implicitly or explicitly accepted the settlement, and on that basis there is no basis on which to dismiss the Application under s.45.1.
Additional Issues
19I gave the parties an opportunity to make submissions after the hearing with respect to three additional issues; the timeliness of certain allegations from 2013 and 2014, the applicant's request to amend his Application to include additional witnesses, and the respondents' request to remove the individual respondents.
20The applicant withdrew his request to amend his Application to add witnesses on the basis that it was premature and unnecessary, and consented to the remove the individual respondents already named. The individual respondents are removed on consent, and the style of cause is amended accordingly.
21The applicant confirmed that he had raised incidents from late 2013 and early 2014 only as background for his allegation of reprisal, and that he was not seeking any independent finding of discrimination related to those earlier events.
22The respondent does acknowledge that the applicant raised the Code in general terms respecting the 2013-2014 incidents by indicating he was considering taking the dispute to the Human Rights Tribunal. However, it also claimed that there is no indication those incidents were based on any specific Code ground such as age, gender or disability, and that they rather appear to be general complaints of harassment and unfairness in the workplace which are not governed by the Code.
23Though a claim of reprisal does not require the underlying claim to be substantiated, it does require the applicant to have had a genuine belief that he or she had been subject to discrimination under the Code. See Bertrand v. Primary Response, 2010 HRTO 186, at paras. 59 and 66. The issue raised by the respondent in the present case is whether simply referring to the Human Rights Code, or indicating an intention to contact the Human Rights Tribunal, is, in the absence of any actual allegation of a Code breach, sufficient to base a claim of reprisal.
24The respondent further argued that even if the 2013-2014 allegations did involve Code issues, the applicant will be unable to prove any intention to reprise, which is a required element to establish a claim of reprisal under s.8 of the Code. See Noble v. York University, 2010 HRTO 878 at para. 31.
25The applicant has not, at this point, had an opportunity to make any submissions in response to the above arguments.
26This Application is based on a single incident, namely, that the applicant was not given a position at the new school. The applicant has put forward two possible explanations for why he did not get the job; reprisal and/or ageism. Given my decision that there is no basis to dismiss the allegation of age discrimination under s.45.1, the issue of whether the respondent's decision was discriminatory under s.5(1) of the Code will continue in the Tribunal's process in any case, and in my view it is appropriate, and most expeditious, for the above issues relating to the allegation of reprisal to be addressed as part of the hearing on the merits, rather than as a separate summary hearing. This is, of course, without prejudice to the respondent's right to request that the adjudicator hearing the Application address these issues as preliminary matters.
Order and Directions
27The respondent's request to dismiss the Application under s.45.1 is denied.
28The individual respondents are removed as parties to the Application.
29I am not seized.
Dated at Toronto, this 29th day of November, 2016.
"Signed By"
Bruce Best Vice-chair