John Fisher v. Ministry of Correctional Services (840000), and Ministry of Labour
0335-00-HS John Fisher, Applicant v. Ministry of Correctional Services (840000), and Ministry of Labour, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; June 14, 2001
1This is a request for reconsideration of the decision of the Board issued in this application on March 21, 2001. That decision simply records the fact that the parties had entered into Minutes of Settlement and that the applicant sought to withdraw the application. The request does not suggest that the applicant did not make that representation, or that the Minutes of Settlement were not executed in the form filed with the Board. Rather, the applicant alleges that the responding party breached the Minutes of Settlement and on that basis, seeks to resile from the Minutes of Settlement and asks the Board to ignore them and proceed with the application as originally filed.
2Needless to say, the Board would be reluctant in any event to permit parties to resile from Minutes of Settlement freely entered into. The value of certainty and finality is one which is given great weight in law generally, and by the Board.
3Occasionally parties wish to resile from or reinterpret a settlement when they discover that it applies in unanticipated ways. In Ministry of Correctional Services, [2000] OLRB Rep. Dec. 1167 the Board refused to vary the plain meaning of the words in Minutes of Settlement based on the uncommunicated intention or understanding of one party. If parties were able to resile from a settlement they had executed because they discovered that the agreement was more or less onerous than they anticipated, it would undermine any process of settlement of disputes. To permit parties to do so would have the effect of increasing the appetite for litigation and decreasing any incentive to negotiate realistic solutions which individual parties encounter in their workplaces.
4Further, if the Board were to permit parties to resile from an agreement upon discovery of a breach by the other party, it would rob the settlement of any certainty. It is that certainty that encourages parties to settle rather than litigate in the first place. In this case, the parties both expected that each party would comply with the Minutes of Settlement. Indeed the Ministry's position is that it has complied or that the breach is merely a technical one. That is, the Ministry wishes to preserve the certainty of the settlement they negotiated as much as the applicant does.
5The possibility that one party or the other might not live up to the full letter of the agreement must surely have been within the contemplation of the counsel who drafted the document. However, they did not provide for any mechanism for resolving disputes over whether the settlement agreement had been breached, and if so what the appropriate response or remedy for such a breach was. The difficulty in this case is that section 96(7) of the Labour Relations Act, 1995, S. O. 1995 ch.1 ("OLRA") does not apply to this section. Section 96 of the OLRA applies only to settlements reached in applications under section 50(2), see section 50(3). Applications under section 61 are dealt with by the Board under section 61 of the Act, which contains its own code for the conduct of litigation. That section does not have an equivalent to section 96(7).
6In any event, section 61(8) gives the Board the power only to reconsider its own decisions. It may not reconsider the actions of the parties or the Minutes of Settlement themselves. If the Board were to reconsider and revoke this decision, the Ministry would still be entitled to take the position that the dispute had been settled and that the Board was consequently without jurisdiction to hear the application. This submission is one which would appear to be correct. As the Court of Appeal said in Data General (Canada) Ltd. v. Molnar Systems Group Inc. (1991) 1991 CanLII 7326 (ON CA), 85 DLR (4th) 392:
"The word [settlement] means to bring a dispute to an end by arrangement of the parties as opposed to by a judgment of a court on the merits."
The fact that the dispute has been brought to an end by a settlement rather than a litigated decision is irrelevant. The dispute is over. In another decision the Superior Court of Justice said:
The many cases in the law reports dealing with settlement releases may seem to have sharp edges but their thrust is that absent fraud, overreaching or similar equitable consideration, the release must be given its due. Typical of these cases is Athabasca Realty Co. v. Foster (1982), 1982 ABCA 48, 18 Alta. L.R. (2d) 385 at p. 394, 132 D.L.R. (3d) 556 (C.A.) where, Laycraft J.A. says this:
While a settlement extends only to subjects which the parties have in contemplation, a settlement may not be avoided because the damages arising under one of the headings contemplated is greater than expected. Where, for example, a party settles a claim for personal injuries and later finds he was injured more seriously than he thought, a settlement is binding: Thornburn v. Danforth Bus Lines Ltd., 1954 CanLII 142 (ON HCJ), [1955] O.R. 494, [1955] I.L.R. 1-188, and Tucker v. Moerman, 1970 CanLII 542 (ON HCJ), [1970] 2 O.R. 775, 12 D.L.R. (3d) 119.
Van Patten v. Tillsonberg District Memorial Hospital et. al. (1998) 1998 CanLII 14834 (ON CTGD), 39 O.R. (3d) 716 at 723-4 (Killeen, J.) rev'd in part on appeal (1999) 1999 CanLII 3754 (ON CA), 45 O.R. (3d) 223 at 233-235 (OCA)
7It is also not apparent to the Board that the parties are without any remedy in the case of a breach of the Minutes of Settlement. The Minutes themselves characterize the protocol contained in the Minutes of Settlement as the manner in which the parties agree that sections 25(2)(a) and (h) of the Act are to be applied in the context of the situation with which the Minutes of Settlement deal. The Act, of course, is a statute of general application and cannot possibly detail the appropriate response to every type of situation. Whether or not the actions of an employer comply with its obligations under the Act may, ultimately, be determined by the Board. Where the appropriate parties have reached an agreement about the precise application of the Act in their particular workplace, the Board, and hopefully a Health and Safety Inspector as well, will give considerable weight to such protocols.
8Accordingly, in these circumstances, the applicant could have responded to the apparent breach of the Minutes by calling an inspector as it has done in the past. The inspector might have agreed that the protocol drafted by the parties was a proper detailing of the obligations of the parties imposed by the Act and made an Order accordingly. If the officer disagreed with the applicant, the applicant could then have filed a new section 61 application. The Minutes of Settlement would have been of considerable importance in defining the employer's obligations under section 25.
9However, the applicant did not do so. Given the undisputed existence of the Minutes of Settlement, the Board does not consider it appropriate to reconsider its decision of March 21, 2001. The application for reconsideration is dismissed.
"David A. McKee"
for the Board