P-2005-3536

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Jones

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE COMPLAINANT

Richard L. Pollock Mousseau DeLuca McPherson Prince LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Lisa Compagnone Ministry of Government Services Counsel

CONFERENCE CALL

July 6, 2010.

Decision

1The complainant in this matter has applied to the board under the Public Service of Ontario Act, alleging that her dismissal from employment is without just cause. She also alleges that the employer has breached Minutes of Settlement (MOS) dated February 20, 2007. More particularly, she claims that a job offer made to her pursuant to the settlement was made in bad faith and therefore she seeks to tender evidence of events which occurred before the date of the settlement. The complainant also seeks to adduce this evidence to prove her state of mind when she went on sick leave and then attended a college full time, the main reason for her dismissal. The employer opposes the introduction of this evidence. I heard submissions by way of conference call on July 6. 2010. Thus, this decision addresses the issue of whether evidence of events that are the subject matter of a memorandum of settlement between the parties is admissible.

2Having carefully considered the submissions of the parties I have decided to grant the employer’s motion to exclude the evidence of events which occurred up to the date of the settlement on February 20, 2007. The main reason for deciding so is that the MOS clearly provides that all the grievor’s complaints up to and including the date of settlement were resolved for consideration. Both the preamble and clause 13 of the settlement specifically include all possible claims to the date of the settlement. In Gottwald v. Ministry of Attorney General, (1998) P- 0127-96, this board held that unless there is a compelling reason, the parties to a settlement are entitled to have their agreements honoured and enforced. The rationale behind this principle is aptly put by Vice -Chair Knopf in Landry-King, cited in Gottwald:

The board wishes to do everything possible to foster and honour settlements reached by the parties. Once settlements are achieved, parties must feel confident that they can rely upon them. Otherwise, there would be no incentive for the parties to even attempt to settle matters. (pp.8-9)

It is important that the board respect the sanctity of memorandums of settlement. Once a matter is settled, unless there is some compelling reason to allow the evidence, the settled matter should not be allowed to come back in a different guise.

3I am satisfied that there is no compelling reason in this case to justify an exception to the general principle of sanctity of settlements. Counsel for the complainant argued that if the employer has acted in bad faith in implementing an MOS, it should not be permitted to rely on it. Counsel also made it clear that he was not arguing that the MOS should be set aside. The allegation of bad faith is that the employer should not have offered the complainant a job with a manager that she believed was her nemesis. Counsel for the employer noted that the grievor in seeking to return to her old position was prepared to work under this manager. The evidence may ultimately show that this offer should not have been made. However, I am not persuaded that there is bad faith here.

4Counsel for the complainant argued that evidence of her state of mind was important to both the complaints before me. He argued that whether the manager in question was a bad person or not, the complainant believed that she was and therefore the evidence was relevant. I have decided that the complainant may testify to her state of mind in May 2008, without the board hearing evidence of what occurred before the MOS.

5The issues before me are whether the MOS was breached by the employer and whether it had just cause to terminate the complainant’s employment with the Ministry. It is the evidence of what occurred after the signing of the memorandum that is crucial. Thus, for all the reasons noted above the employer’s motion to exclude evidence of events before February 20, 2007 is hereby granted.