PSGB#2016-1318

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

VanMilligen

Complainant

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Reva Devins

Vice Chair

FOR THE COMPLAINANT

Andrew Camman Polishuk Camman & Steele Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

CONFERENCE CALL

May 1, 2017

Decision

1The parties entered into Minutes of Settlement (MOS) on November 3, 2016 as a full and final settlement of Ms. VanMilligen’s complaint that she was improperly dismissed from her employment. She now seeks a direction that she be paid a revised amount to reflect the current salary for her former position.

Background and Context

2Ms. VanMilligen was dismissed from her employment on August 8, 2016 and she submitted a complaint shortly thereafter challenging her dismissal. Mediation at the Board on November 3, 2016 resulted in signed MOS. The terms of the settlement were subject to a strict confidentiality clause and the parties agreed that this decision would offer minimal details of the agreement, except as required to explain my decision.

3The relevant provisions are as follows:

a. Paragraph 1 provides that the Employer will continue to pay Ms. VanMilligen “her annual salary of $89,247.00” for a defined period of time.

b. Paragraph 3 provides that “The Complainant agrees that she is not eligible for any further payments or compensation from the Employer of any type or kind whatsoever other than as described in paragraph 1 herein.”

c. Paragraph 17 provides that I will retain jurisdiction to “interpret and implement” the MOS.

4Approximately one month after the MOS was executed Ms. VanMilligen learned that the job class for her former position was awarded a pay increase retroactive to April 1, 2016. She received payment for the retroactive period that pre-dated her dismissal, but was eventually advised that she would not receive the increase for the period covered by the MOS.

The Parties’ Arguments

5Mr. Camman, counsel for the Complainant, contacted the Board and requested an Order that Ms. VanMilligen be paid at the new rate for the entire period referred to in paragraph 1 of the MOS. He took the position that such an order was in the “spirit of the settlement and good faith”. In his submission, the negotiations focussed on the appropriate length of the notice period, not the amount of the salary. If the parties had turned their mind to the possibility of a pay increase during the negotiated notice period, Mr. Camman suggested that they would have agreed that Ms. VanMilligen should be paid at the current rate for her position.

6The Employer submitted that regardless of what Ms. VanMilligen and her counsel contemplated, the total dollar value was what the Employer negotiated: both the amount of the annual salary and the length of the notice period were taken into account in arriving at an acceptable settlement. In the Employer’s submission, paragraph 3 of the MOS clearly addresses this issue wherein the parties agreed that the Complainant would not be eligible for any further compensation, of any kind. Lastly, the Employer took the position that the Board did not have any equitable jurisdiction to amend the terms of the MOS.

7Mr. Camman was offered an extended opportunity to provide reply submissions, in particular with respect to the Board’s jurisdiction to provide the remedy sought. He did not make any further submissions and indicated that he was content to have a decision issued on the basis of the submissions that he had already made.

Analysis and Conclusion

8Having considered the submissions of the parties, I have determined that I neither have the jurisdiction to substitute a revised salary nor am I persuaded that it would be appropriate to do so.

9My jurisdiction to review the terms of the MOS is limited to issues of interpretation and implementation. Mr. Camman has been candid in acknowledging that he is essentially asking me to assume equitable jurisdiction to grant relief that would reflect the spirit of the agreement, even though that conflicts with the plain language and express terms that the parties drafted. He was unable to provide any cases to support his assertion and I have no hesitation in finding that I do not have any equitable jurisdiction to amend the terms of the MOS.

10This Board has consistently found that, absent duress, which is not suggested in this case, it is the Board’s duty to enforce the clear terms of negotiated settlements: Younger and The Crown in Right of Ontario (Ministry of the Environment) (O’Neil) PSGB#P-2006-2457. To allow a settlement to be re-opened or revised would seriously undermine the final and binding nature of settlement agreements and is inconsistent with ensuring that parties can have confidence in the finality of their negotiated settlement agreements.

11Although I appreciate Ms. VanMilligen’s disappointment, she is only entitled to what was negotiated at the time of settlement. The parties in this case agreed to very specific terms. They agreed that Ms. VanMilligen would be paid her “annual salary of $89,247” for a period of time and that she was “not eligible for any further payments or compensation from the Employer of any type or kind”. On a plain reading of the agreement, there is no room for an interpretation that would require the Employer to pay the Complainant an amount in excess of the sum that was expressly included.

12I have no reason to doubt that Mr. Camman and Ms. VanMilligen were focussed on the length of the notice period and not the amount of the annual salary during settlement discussions. However, I also accept the Employer’s submission that it was concerned with its’ overall liability, which was determined by both the length of the notice period and the annual salary rate. However the parties determined that this was an acceptable resolution, it is the terms of the agreement that ultimately governs the parties’ entitlements. In this case they agreed that payments would be based on a defined annual salary of $89,247.00 and that there were no further entitlements, of any kind.

13In light of my limited jurisdiction and the fundamental need to respect the terms of final settlements, as they are negotiated, the Complainant’s motion is dismissed.