HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Winchester
Applicant
-and-
Simcoe County District School Board
Respondent
DECISION
Adjudicator: Josée Bouchard
Indexed as: Winchester v. Simcoe County District School Board
APPEARANCES
John Winchester, Applicant
Self-represented
Simcoe County District School Board, Respondent
Lauri A. Reesor, Counsel
Introduction
1The applicant filed an Application on July 15, 2015 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of age.
2On July 4, 2016, the Tribunal held a Preliminary Hearing to address the respondent’s request that the Tribunal dismiss the Application pursuant to section 45.1 of the Code.
ANALYSIS AND DECISION
3The Application is dismissed.
Background
4The applicant was a secondary school teacher with the respondent for more than 15 years. In January 2013, the respondent received authorization to build a new secondary school (“new school”) in Orillia on the site of the school where the applicant worked (“applicant’s school”). In June 2013, the applicant’s school closed to allow for the construction of the new school and staff members moved temporarily to an amalgamated school. In June 2013, the teachers from the applicant’s school were informed that they would have to re-apply for positions at the new school, which opened in September 2015. The applicant applied for such position but was unsuccessful and was transferred to another school. The applicant alleges that he was not rehired, along with colleagues who were in similar situations, because of his age.
5In his Application, the applicant indicates that the facts of the Application are part of another proceeding that is still in progress, namely a union grievance. The applicant requested that the Tribunal defer the Application until the other proceeding had completed.
6On October 15, 2015, on the consent of the parties, the Tribunal deferred the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure pending the completion of the grievance proceeding.
7On February 4, 2016, the applicant filed a Request for an Order During Proceedings (“RFOP”) seeking to re-activate the Application. The respondent filed its Response to the RFOP on February 18, 2016 opposing the request to re-activate and requesting the dismissal of the Application pursuant to section 45.1 of the Code.
8By Case Assessment Direction dated March 7, 2016 the Tribunal re-activated the Application and directed that a hearing be scheduled to address the question of dismissal pursuant to section 45.1 of the Code.
9The respondent maintains that the Ontario Secondary School Teachers’ Federation (“OSSTF”) brought three grievances that included the applicant’s allegation of discrimination based on age. The grievances were settled on January 12, 2016 by Memorandum of Settlement (“MOS”) and the respondent argues that the grievance proceeding appropriately dealt with the Application.
10The respondent maintains that it is well established in the Tribunal’s jurisprudence that settlements of grievances referred to arbitration constitute “proceedings” for the purpose of section 45.1 of the Code. It argues that both parties agreed that the arbitration process dealt with the same facts as those alleged in the Application
11The respondent maintains that even if the applicant was not a signatory to the MOS, the OSSTF had full authority to negotiate a settlement on behalf of the applicant on issues that were identical to the Application and the applicant did not dispute the OSSTF’s authority to negotiate on his behalf.
12The respondent argues that the applicant’s age discrimination grievance was specifically considered and resolved in the MOS, the respondent provided financial compensation specifically with respect to the age discrimination allegation and the applicant cashed the cheque received as a result of the MOS.
13The respondent further maintains that the MOS provides two non-financial benefits that were available to the applicant: a right of recall and a right to be placed on the respondent’s surplus list. It argues that these are greater rights or benefits than otherwise conferred under the applicable collective agreement.
14The applicant admits that the facts and issues in the Application are the same as those in the grievances. He also recognizes that the OSSTF had the authority to negotiate on his behalf and he never voiced an objection to that authority or the MOS. He argues that in his Application, he requested a higher monetary remedy than the $1,000 received through the MOS. The applicant explains that he cashed the cheque received as a result of the MOS because he was told that if someone contravened the MOS by breaching its confidentiality clause, the payments could be withdrawn. He argues that this was not an implied acceptance of the MOS. The applicant argues that he requested the re-activation of the Application because he did not receive all the remedies he had hoped for in the MOS. The applicant also maintains that as he retired in January 2016, he did not take advantage of the non-monetary benefits of the MOS.
DECISION AND ANALYSIS
15Section 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.
16The Tribunal has considered the application of section 45.1 of the Code notably in Campbell v. Toronto District School Board, 2008 HRTO 62 (“Campbell”), and Noble v. York University, 2009 HRTO 1201. It is clear from these decisions that the Tribunal places a high value on the finality of litigation, judicial economy and the recognition of the jurisdiction of other adjudicative bodies under the Code. In applying section 45.1 of the Code, however, the principal concern is not whether there has been related or parallel litigation, but whether the other proceeding has appropriately dealt with the substance of the human rights application.
17The Tribunal has applied a two part test to determine whether an application should be dismissed under section 45.1. the Tribunal must consider:
a. Whether there is another proceeding; and
b. Whether that proceeding has “appropriately dealt with” the substance of the application. See Campbell, above, at para. 64.
18I find that the MOS constitutes a “proceeding” for the purpose of section 45.1 of the Code. See Franze v. Vantage Property Management Ltd., 2015 HRTO 156 at para. 9.
19I must now determine whether the MOS precludes the applicant from proceeding with the Application.
20The Tribunal’s jurisprudence is clear that in making a determination of whether a matter has been appropriately dealt with, the issue is not whether the applicant has received the result and remedy that he was hoping for. The applicable criterion is whether the other proceeding appropriate dealt with the substance of the application. See Sikorski v. Vaughan (City), 2015 HRTO 1740 at para. 15 and Taylor v. Hamilton (City), 2013 HRTO 1591.
21This 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.
22There 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.
23The 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.
24The 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.
25I find that the grievance proceeding appropriately dealt with the substance of the Application.
Order
26The Application is dismissed.
Dated at Toronto, this 14th day of July, 2016.
“signed by”
Josée Bouchard
Vice-chair