GSB# 2019-2371; 2020-0929

UNION# 2019-0502-0031; 2020-0502-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Holder-Regis)

Union

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Anjana Kashyap Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel

FOR LAURA HOLDER-REGIS HEARING

Laura Holder-Regis November 2, 2020

Decision

1Did the Employer, the Union and Ms. Holder-Regis enter into a binding settlement on October 28, 2020? That is the issue before me and determined by this decision.

2The grievance which is the subject of GSB File No. 2019-2371 was scheduled for arbitration before me on October 28, 2020. As is typical, the Union and the Employer elected to use that first day for mediation. At the conclusion of the day, representatives of the Employer and the Union both signed a Memorandum of Settlement which named the Employer, the Union and Ms. Holder-Regis as parties. When presented with that document for her signature, Ms. Holder-Regis refused to sign. Further, she advised counsel for the Union that in her view there was no settlement. The Employer requested a hearing on an urgent basis so that it might bring a motion to argue that a binding settlement existed.

3That hearing was conducted on November 2, 2020. The Employer and the Union were in agreement that the settlement recorded in the Memorandum of Settlement was reached on October 28, 2020. The Memorandum of Settlement contains a confidentiality clause, but some of its terms are relevant for the purposes of this decision. I omit the other terms. For ease of reference, I have also underlined certain language in paragraphs 7 and 10 which was added during the course of negotiations, as discussed further below.

GSB# 2019-2371, 2020-0929

OPSEU# 2019-0502-0031, 2020-0502-0007

HRTO File No. 2020-43232-I

Memorandum of Settlement

Between:

Laura Holder-Regis

Grievor

• and -

The Ontario Public Service Employees Union (OPSEU)

Union

• and -

THE CROWN IN RIGHT OF ONTARIO as represented by

the Ministry of the Attorney General

Employer

WHEREAS the Grievor filed the above-noted grievances dated October 22, 2019 and June 17, 2020 alleging, inter alia, harassment and discrimination, and failures to accommodate and to provide a safe workplace;

AND WHEREAS the Grievor filed the above-noted Application to the Ontario Human Rights Tribunal dated October 15, 2020, alleging, inter alia, harassment and discrimination, and failure to accommodate;

THEREFORE the Parties agree to the full and final settlement of the Grievances, without precedent and without prejudice to any other matter between the Parties, on the following terms:

[Paragraphs 1 - 3 omitted]

4. The Grievor and Union agree that the Grievances are hereby fully and finally resolved and withdrawn.

5. The Grievor agrees that the HRTO Application is hereby fully and finally resolved and withdrawn. The Application [sic] agrees to file a Tribunal Form 9, to be delivered to the Employer’s counsel, within ten (10) days of the date of this settlement.

6. The Grievor and Union agree to release and forever discharge the Employer, its servants, agents, directors of and from all actions, causes of actions, claims and demands of every nature and kind arising out of the circumstances of the Grievor’s employment with the Employer up to the date of this settlement, including but not limited to all claims under the collective agreement, the WDHP/Respectful Workplace Policy, the Public Service of Ontario Act, the Human Rights Code, the Occupational Health and Safety Act, and the Employment Standards Act. The Grievor and the Union further agree that any facts related to these Grievances will not form the basis of any future proceeding against the Employer, its servants, agents, and directors.

7. The parties agree that they have discussed or otherwise canvassed any and all human rights complaints, concerns, or issues, arising out of or in respect to the employee's employment with the Employer up to the date of this settlement.

8. Nothing in this settlement constitutes an admission of liability by any party.

9. The Parties agree that this settlement constitutes the entire agreement between the Parties and supersedes any and all prior oral or written agreements, arrangements or understandings between them.

10. The Parties agree to keep the terms of this settlement strictly confidential, with no disclosure except to the Grievor’s immediate family, union, legal or financial advisors, or as required for the settlement’s implementation, and as required by law.

11. The Grievor agrees that she has voluntarily entered into this settlement and is fully informed of and understands the consequences of this settlement.

12. The Parties agree that the Arbitrator Ian Anderson of the Grievance Settlement Board shall be seized with jurisdiction if any disputes regarding the implementation or interpretation of this settlement should arise.

Dated at Toronto, this 28th day of October, 2020.

___________________________ ”L. Sciarria”______________

For the Grievor For the Employer

[Illegible Signature]___________

For the Union

4At the outset of the hearing, Ms. Holder-Regis disputed that she had agreed to the settlement set out in the Memorandum of Settlement, indicating that she did not agree to “the removal of the human rights part”.

The Legal Framework

5There is no question that the Employer and the Union agreed upon the settlement set out in the Memorandum of Settlement. The issue is whether Ms. Holder-Regis is bound by that settlement. If not, a further issue arises as to whether the fact she is not bound vitiates the agreement of the Employer and the Union.

6In general, while individual grievances complaining of a breach of a collective agreement are filed by the aggrieved employee, the grievance itself belongs not to the employee but to the union which is the party to the collective agreement with the employer. That is, the union has carriage rights of the grievance and the grievor has no independent legal standing to advance the grievance through the grievance or arbitration process. Consequently, the union and the employer may settle the grievance without the agreement of the grievor. Such a settlement may extend beyond the scope of the grievance to other employment related issues for which the union holds exclusive representation rights, including other grievances filed by the grievor. It is not uncommon, however, for a grievor to be made a party in their own right to the settlement of their grievance, even when not legally necessary to do so.

7Further, it is not uncommon for settlements to address complaints for which a union does not hold exclusive representation rights, such as alleged breaches of the Human Rights Code. Indeed, where there are or may be proceedings before the Ontario Human Rights Tribunal (“HRTO”) which raise some or all of the issues addressed by a grievance, an employer will typically have little interest in settling the grievance without at the same time resolving the Human Rights Tribunal proceedings. This is because there is generally little benefit to an employer in providing consideration to settle an employee’s grievance if the prospect of litigating the same issues before the Human Rights Tribunal remains. Accordingly, employers will typically seek a “global settlement” of all complaints which the employee may have, or at least all complaints related to the issues raised by the grievance. Such a settlement, of necessity, must include the grievor as an independent third party.

8During arbitration proceedings the legal representative of a union is just that: they are not the legal representative of the grievor. Similarly, during negotiations of a settlement, the union’s representative, by virtue of being its representative, has authority to bind the union, not the grievor. This distinction is generally of little practical consequence as the interests of the union and the grievor typically coincide, nonetheless it is real.

9Where, as here, the union and the employer seek to a negotiate a settlement to which the grievor will be a party in her own right, the union’s representative assumes a dual role. They continue to make representations as to the union’s settlement position, but they may also make representations as to the grievor’s settlement position, effectively becoming the grievor’s agent. The employer is entitled to rely on the representations made as to the grievor’s position.

Application to the Facts

10No evidence was called during the hearing on November 2, 2020. Rather, counsel for the Employer, Mr. Lynes, made certain representations of fact with reference to various documents which were filed as exhibits. The Union’s representative, Ms. Kashyap indicated that the Union did not dispute any of those facts. Ms. Holder-Regis specifically disputed certain facts related to her application to the Human Rights Tribunal, as noted below.

11At various times during his representations of fact, Mr. Lynes referred to the “parties” having reached agreement on one point or another. It is important to note that at no point during the negotiations did Ms. Holder-Regis directly communicate anything to the Employer or its counsel. Rather, Ms. Kashyap advised counsel for the Employer of positions taken by both the Union and Ms. Holder-Regis.

12The facts before me for the purposes of this decision are as follows.

13The Union and the Employer agreed to use October 28, 2020 in mediation of an attempted settlement. Their representatives on that day were Ms. Kashyap and Mr. Lynes respectively. I would note that as is the norm for these parties, the legal representatives of the Union and the Employer met together with me as the mediator at the outset of the day to outline the facts and legal issues involved and begin to outline possible settlement positions.

14In the grievance before me, Ms. Holder-Regis alleged bad faith failure to accommodate disability and discrimination on the basis of age. During the course of this initial session, there was reference to a second grievance filed by Ms. Holder-Regis (scheduled for arbitration at a later date before me) which alleged ongoing failure to accommodate. There was also reference to the fact that Ms. Holder-Regis had filed an application with the HRTO. Mr. Lynes indicated that from the Employer’s perspective, settlement discussions would be predicated upon a global settlement of both grievances and the HRTO application. Ms. Kashyap was asked to confirm with Ms. Holder-Regis that she was prepared to settle on that basis. Ms. Kashyap left the virtual meeting room, returned within a minute or two and confirmed that Ms. Holder-Regis was prepared to settle on that basis.

15Offers to settle with respect to substantive issues were exchanged. At approximately 3:50 PM, Mr. Lynes communicated to Ms. Kashyap the Employer’s acceptance of the last offer she had presented.

16At 4:21 PM, Mr. Lynes sent Ms. Kashyap an email with the subject line “Holder MOS”. The text of the email reads “WITHOUT PREJUDICE Please see attached for review”. A document called “Holder-Regis, Laura MOS (DRAFT).docx” is attached. That document is identical to the Memorandum of Settlement ultimately signed by the Employer and Union except it lacked the words underlined in paragraphs 7 and 10 as reproduced above. (There were also two pluralization errors which were subsequently corrected, as described below.)

17Ms. Kashyap and Mr. Lynes had some direct communication during which Ms. Kashyap raised issues about the scope of the release clause in paragraph 6 and the scope of the human rights issues described as having been canvassed in paragraph 7. Those were the only issues raised. At 4:47 PM, Ms. Kashyap sent Mr. Lynes a reply to his earlier email. The text of her email reads “WITHOUT PREJUDICE Please see attached revised MOS”. The attached document is the same as the Employer’s 4:21 PM draft, except that the words “up to the date of this settlement” have now been added to paragraph 7.

18At 4:55 PM, Mr. Lynes replied to Ms. Kashyap’s email. The text of his email reads:

Please see attached with Employer’s signature.

We made two clerical corrections, pluralizing “Grievances” in the “Therefore” clause and at the end of para. 6.

Notably, the words “Without Prejudice” do not form part of this email. The attached document is called “Holder-Regis, Laura - MOS - October 28, 2020 - LS signed.pdf”. It contains the change requested by Ms. Kashyap in the attachment to her 4:47 PM email, the corrections described in Mr. Lynes 4:55 PM email and is signed by L. Sciarria on behalf of the Employer.

19Following this, Ms. Kashyap advised Mr. Lynes that she had further consulted with Ms. Holder-Regis and that they were seeking another amendment, this time to the confidentiality clause so that Ms. Holder-Regis could speak to her legal advisors.

20At 5:17 PM, Mr. Lynes sent Ms. Kashyap an email the text of which reads: “See attached with legal advisor edit”. The attached document is called “Holder-Regis, Laura - MOS - October 28, 2020 - LS signed.pdf”. The word “legal” has now been added to paragraph 10, so that the text of the document is now identical to the one ultimately signed. This document is also signed by L. Sciarria on behalf of the Employer.

21Subsequently the 5:17 PM document was signed by Ms. Kashyap on behalf of the Union. Ms. Holder-Regis declined to sign the document.

22Following Mr. Lynes’ representations as to the facts, Ms. Holder-Regis was asked if she disputed any of those facts. She stated that when she was discussing the Memorandum of Settlement with Ms. Kashyap, she noticed that it covered her application to the HRTO. She also noticed that the confidentiality clause did not permit her to speak to the lawyer who was handling her human rights application. She asked for the confidentiality clause to be amended and she spoke to the lawyer handling her human rights file. She confirmed that she did not ask Ms. Kashyap to strike from the Memorandum of Settlement any reference to her human rights application, stating that she “did not know that I could”.

23On the facts set out above, I conclude the Employer was entitled to assume that Ms. Kashyap was negotiating on behalf of both the Union and Ms. Holder-Regis. Such an assumption would reflect the normal practice, there was absolutely no suggestion to the contrary during the negotiations over the course of the day and indeed Ms. Kashyap communicated requests to the Employer as having been specifically made by Ms. Holder-Regis. I therefore conclude the Employer was entitled to treat Ms. Kashyap’s oral request for the amendment to its 4:55 PM document as an offer made on behalf of both the Union and Ms. Holder-Regis to the effect that the terms of the 4:55 PM document were acceptable provided the amendment was made. I note that Ms. Holder-Regis confirmed that she did not ask Ms. Kashyap to request any other amendments. The Employer’s 5:17 PM response, containing the requested amendment, constituted its acceptance. Given this conclusion, I need not consider whether there was oral offer and acceptance at some earlier point in time.

24Following Mr. Lyne’s submissions, Ms. Kashyap indicated the Union had no submissions. Ms. Holder-Regis was asked if she had any submissions she would like to make. She stated that she did not agree to her HRTO application being dismissed and that is why she did not sign the Memorandum of Settlement. She stated that the discussion was “mostly about accommodation, accommodation, accommodation”, so she did not even think about her HRTO application. She also stated that at the time she thought it was only when she signed the Memorandum of Settlement that it became legal binding. She indicated that she now understood that the settlement was considered to be legally binding, but stated that she disagreed.

25I need not comment on Ms. Kashyap’s additional factual assertions. As stated by Arbitrator Lynk in Ontario Public Service Employees Union v Crown in Right of Ontario, 2013 CanLII 74176 (ON GSB) at para. 33(d):

The parties can be bound by oral commitments, as long as the evidence demonstrates that they have unconditionally agreed to settle the substantive issues between them (City of Toronto v. Toronto Civic Employees Union, Local 416 (Lewis), [2002] O.L.A.A. No. 531 (Luborsky)). Reducing the settlement to writing is a procedural, and not an essential, feature of an agreement. Signatures on a document are usually conclusive that an agreement has been reached, but a binding agreement does not necessarily depend on the presence of signatures. (OPSEU v. Ministry of Community and Social Services (Corbiere), [2013] O.G.S.B.A. No. 124 (Dissanayake)).

26In the result, I conclude that the Memorandum of Settlement dated October 28, 2020 which was signed on behalf of the Employer and the Union sets out the terms of the settlement agreed to by Ms. Holder-Regis as well. As such, it is binding on all three parties to that document. Given this conclusion, I need not consider whether the settlement would have been vitiated had Ms. Holder-Regis not been bound.

27For all of the foregoing reasons, the Employer’s motion succeeds.