And on the other hand...

I once heard a joke that everyone wants a one-handed lawyer, because legal advice is so often qualified by "...but on the other hand..."

Last night I posted about the Human Rights Tribunal finding that, where a Union had settled a grievance on behalf of an employee (without the employee's consent and, in one case, over the employee's objections), the employee is bound by the settlement and can't subsequently initiate a Human Rights proceeding.

Today a new decision was published on CanLII in a different case, Parliament v. Metro Ontario (think 'grocery store' Metro).

Ms. Parliament alleged that the employer turned her down for a promotion because of her physical limitations. She filed a grievance.

For non-Union readers, you should understand that grievance processes usually have a series internal steps in which employer representatives will hear the case and determine whether or not the employer wants to accept the grievance. If the employer decides to reject the grievance, then the Union has the option of referring the dispute to arbitration.

This grievance was rejected by the employer, and the Union decided to accept the employer's decision and declined to refer the grievance to arbitration.

Ms. Parliament, however, didn't accept this, so she made an Application to the HRTO. Metro took the position that (a) the subject matter of the proceeding had been appropriately dealt with in the grievance and (b) in the alternative, the Application should be deferred until a final disposition of the grievance.

As the Tribunal points out, the positions are contradictory. Either the grievance process is done or it isn't. (It's kind of like defending a criminal proceeding by making an identity defence and an affirmative defence. "You're Honour, my client has an alibi, and was in Cuba at the time of the offence; in the alternative, in case that you don't believe the alibi witness, I'll be leading evidence to establish that the victim was charging at my client with a knife at the time. Even though my client was 4000km away.") Still, I kind of see the logic: There isn't a formal end to grievance processes if you stop short of arbitration without a settlement. There are time frames within which the matter needs to proceed, but arbitrators have jurisdiction to relieve against these time limits. So it isn't certain that the proceeding is dead. But, by choosing not to refer to arbitration within the timeframes, or even thereafter, the Union has abandoned the grievance, making the Human Rights Application an abuse of process.

I see the logic. I don't agree with it, but I could make that pitch.

The HRTO ruled that the failure to refer the grievance to arbitration didn't mean that the subject matter of the proceeding has been appropriately dealt with, for the following reason:

There is no information before me suggesting that the parties reached a settlement, that the applicant had any role to play in the Union’s decision-making, or that the applicant understood and agreed that her concerns had been appropriately dealt with through the grievance process.

This Tribunal has generally accepted that where a grievance dealing with substantially the same subject matter as an application has been settled by the parties, section 45.1 may apply to bar all or part of an application. Conversely, the Tribunal has held that the requirements of section 45.1 are not met where a grievance has been withdrawn unilaterally by a union....

So how do the 'settled without grievor participation' cases fit into this framework? Well, they're distinguishable from this case, in that money was paid, there was a settlement, which might tend to move it more towards the class of grievances 'settled by the parties'...but with the grievor not being involved in the settlement, it still seems more akin to a unilateral move by the union - unilateral in at least one of the relevant senses, in that the grievor is not a participant.

(I should also note that unilateral withdrawal by a Union from OLRB proceedings following after a Board mediation are usually held to be "with prejudice", meaning that the matter can't be raised again. Not particularly relevant, but an interesting side note in context.)

Let me cast it in this light:

You and I both grieve allegedly discriminatory treatment. Your grievance has real merit; mine has no merit whatsoever. The Union lacks the will and resources to fight either case, and so simply walks away from mine, and manages to extract a small settlement for your case (because the Employer recognizes the merits of your case), but one that does not nearly approach your entitlements or create a meaningful remedy to the discrimination. You rigourously object to the Union settling your grievance on this basis, but the Union persists.

What's the result? I get to go to the HRTO because my grievance was simply abandoned. You don't get to go to the HRTO because the employer saw enough merit in yours to offer money. I call that an incoherent result, where the meritorious claim gets killed but the nonsense one goes forward.

This is a conflict in the HRTO jurisprudence which will have to be worked out. Either Unions have the authority to raise and dispose of Human Rights disputes on behalf of the bargaining unit members, or they don't. It's that simple. In fact, it's simpler than that in my mind, because if it were the former it would undermine the purposes of the Code. So the answer ought to be that they don't. If the employee can't be said to have voluntarily agreed to dispose of a potential human rights claim, then they shouldn't be blocked by that purported settlement from making an Application to the Tribunal.

But that's my opinion, and clearly it's at odds with the opinions of the HRTO adjudicators, whose opinions are far more important than mine in this sort of thing. (I might be interested in hearing what the opinion would be of the judges of the Divisional Court, given the right fact pattern, though.)

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