Betty Jean Luno v. Canadian Union of Public Employees, Local 1019, 1987 CanLII 3104

[1987] OLRB Rep. October 1277

3063-86-U Betty Jean Luno, Complainant v. Canadian Union of Public Employ­ees, Local 1019, and The Lambton County Board of Education, Respondents

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. M. Sloan and B. L. Armstrong.

DECISION OF THE BOARD; October 9, 1987

1. The name of the first respondent is amended to "Canadian Union of Public Employees, Local 1019".

2. This is a complaint under section 89 of the Labour Relations Act in which the complain­ant alleges that she has been dealt with by the respondents contrary to the provisions of sections 68, 70, and 80 of the Act.

3. The complaint was filed with the Board on February 10, 1987. On February 13, 1987, the Board authorized Peter Gallus, a Labour Relations Officer, to enquire into the complaint and to endeavour to effect a settlement, pursuant to section 89(1) and (2) of the Act.

4. Pursuant to that authorization, Mr. Gallus convened a meeting of the parties in Sarnia on March 26, 1987, at which the complainant and the respondent trade union entered into the fol­lowing Minutes of Settlement:

Minutes of Settlement

The parties agree to settle this matter and it is hereby settled as follows:

1. The Union acknowledges that due to the unusual circumstances involved in the com­plainant's dismissal some of its actions did not meet the level of conduct required by section 68 of the Ontario Labour Relations Act.

2. The Union a [sic] agrees to pay to the complainant the sum of $2500. dollars by the 5th day of May, 1987, subject to article (3) of this agreement.

3. This memorandum of settlement is subject to certification by the membership of CUPE, local 1019 and the Executive agrees to recommend acceptance of this memo­randum of settlement to its membership in a timely manner.

4. The complainant, upon receipt of the sum set out in paragraph (2) herein, agrees to withdraw Board file 3063-86-U and further agrees that she will not take or initiate any further actions, complaints or other proceedings against the Union, its members and Paul Senay that may arise from or out of the facts contained in Board file 3063-86-U.

5. The parties hereby agree to adjourn this matter sine die, subject to paragraph (4) herein.

6. The terms of this memorandum of settlement shall not be released to any party out­side of this agreement, prior to this agreements [sic] ratification pursuant to para­graph (3) herein, without the express written consent of the parties involved.

Dated this 26th day of March, 1987 at Sarnia, Ontario.

(signed) "Betty J. Luno"

Betty Jean Luno

(signed) "Donald Whiting"

CUPE Local 1019

DONALD WHITING

(signed) "Joe Conely" (signed) "Eva J. Fraser"

witness CUPE Local 1019 JOE CONELY EVA J. FRASER

(signed) "Edna Cooper"

witness

Edna Cooper

5. In a letter dated July 17, 1987, Shaun R. Hennessy, the Director of the Legal and Legislative Department of the Canadian Union of Public Employees, advised the Board that the respon­dent trade union had complied with its obligations under paragraph 2 of the Minutes of Settlement by tendering a cheque, in the amount agreed to, directly to the complainant on May 2,1987. That letter also contained the following information and request:

I am instructed that Ms. Luno has cashed the cheque on May 5, 1987. Since Ms. Luno has not complied with her obligations under the memorandum of settlement, Local 1019, therefore, takes the position that this matter has been finalized and requests that the Board direct the com­plainant to comply with the terms of the settlement or to dismiss the complaint.

A photocopy of a certified cheque dated May 2, 1987, in the amount of $2,500.00, payable to Betty Jean Luno, accompanied that letter.

6. Copies of that letter and cheque were forwarded by V. R. Robeson, the Board's Regis­trar, to the complainant, to David Stoesser (a lawyer who was retained by the complainant after she entered into the Minutes of Settlement), to the Lambton County Board of Education, and to that respondent's counsel, along with a request that their comments, if any, with respect thereto be received in the Registrar's office on or before August 31, 1987. In a letter dated August 18, 1987 (which was received by the Board on August 24, 1987), Mr. Stoesser acknowledged receipt of that material and advised the Board as follows:

I have referred this matter to my colleague, Mr. Peter Westfall, Barrister & Solicitor, 1778 Churchill Road, Sarnia, Ontario, N7T 7H3, and I have directed your letter to him. Under the circumstances, I trust you will allow Mr. Westfall a little time from August 31st, 1987 to respond to your query.

7. On August 27, 1987, the Registrar acknowledged receipt of that letter and forwarded copies of it to the other parties for their comments, if any, on or before September 8, 1987. On September 16, 1987, J. A. MacDonald, the Board's Deputy Registrar wrote to Mr. Stoesser as fol­lows, with copies to all of the parties and their respective representatives (including Mr. Westfall):

As indicated by V.R. Robeson in her letter of August 27, 1987, copies of your letter of August 18, 1987 were forwarded to the other interested parties herein for their immediate comments.

No such comments have been received. Under the circumstances, the date by which comments, if any, regarding the letter dated July 17, 1987 and the cancelled cheque, referred to in V.R. Robeson's letter to you dated August 17, 1987, are to be received in this office is hereby extended to September 28, 1987.

8. In a letter dated September 18, 1987, Mr. Westfall wrote to the Deputy Registrar as fol­lows:

I acknowledge receipt of your letter dated September 16th, 1987. I enclose a copy of my letter to the Ontario Labour Relations Board dated September 2nd, 1987. To restate out position once again, it is my opinion that the agreement between the Union and Betty Jean Luno is not legally binding on her because she was not represented by counsel and because of the drastic outcome of the agreement.

She is still unemployed and we are pursuing this matter on the grounds of sexual discrimination, sexual harassment, through the Ontario Human Rights Board [sic] and until the matter of her loss of employment is resolved it is not our intention to release the Union from their responsibil­ity in the matter.

Would you please acknowledge by return mail that you have received our correspondence.

Mr. Westfall's letter dated September 2, 1987 which was enclosed with that letter (and which had not previously been received by the Board) reads as follows:

I am now acting on behalf of Betty J. Luno. I have received your letter dated August 17,1987.

I have some difficulties in the settlement arrangement between Mrs. Luno and her Union. She was unrepresented by counsel during the settlement discussions. The failure to properly repre­sent her resulted in her termination of employment without a proper review through the Griev­ance procedure.

The serious consequences of the Union's failure would not appear to be reflected in the amount of the settlement.

On September 30, 1987, the Registrar acknowledged receipt of Mr. Westfall's letter of September 18 and the letter dated September 2, 1987 which was enclosed with it, and forwarded copies of those two letters to the respondents and their representatives.

9. As indicated above, the complainant signed Minutes of Settlement by which she agreed, among other things, to withdraw this complaint upon receipt of $2,500 from the respondent trade union. Although the complainant has received that sum, she is now taking the position, through her lawyer, that she is not bound by that written settlement because she was not represented by counsel at the time of the settlement, and because the counsel whom she subsequently retained is of the opinion that the consequences of the respondent trade union's contravention of section 68 of the Act are not adequately reflected in the amount of the settlement.

10. Under section 10 of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484, a party to proceedings such as the instant case may be represented by counsel or an agent. However, there is no requirement under that legislation, nor under the Labour Relations Act, that a party be so rep­resented; a party is at liberty to refrain from retaining counsel (or from arranging to be represented by an agent) and to represent herself/himself. If such a party enters into minutes of settlement, the fact that s/he was not represented by counsel at the time of the settlement does not negate the binding effect of the settlement. Nor is the settlement vitiated by the fact that the complainant agreed to withdraw her complaint upon receipt of the sum of $2,500. The purpose of section 89 is to secure a prompt, final, and binding resolution of unfair labour practice complaints. The Act expressly recognizes and endorses the settlement of such complaints without a formal Board hear­ing and decision. The provisions of section 89 are intended to facilitate settlements. Under section 89(7), where the matter complained of in a section 89 complaint has been settled, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the set­tlement is binding upon the parties who have agreed to the settlement. Indeed, section 89(7) makes noncompliance with a written settlement a breach of the Act. Each year, trade unions, employees, and employers file thousands of applications or complaints before the Board. A large majority of them are settled. Sometimes the settlement favours a trade union or an employer. Other times it favours an employee. Usually it represents a compromise under which the parties neither achieve as much nor risk as much as they would by proceeding to a hearing before the Board. The parties generally arrive at a settlement in order to avoid the cost and uncertainties of litigation. The orderly resolution of Board proceedings and the efficacy of the settlement process would be gravely prejudiced if, having signed minutes of settlement, a party could afterwards repu­diate the settlement because it fell short of what a legal adviser subsequently retained by that party felt to be achievable through the complaint. (See, generally, Brantwood Manor Nursing Homes Limited, [1984] OLRB Rep. Mar. 415.)

11. For the foregoing reasons, this complaint is withdrawn in accordance with the provi­sions of the Minutes of Settlement set forth above.