Employers and trade unions customarily conclude grievance settlement agreements with provisions stating that an arbitrator "shall remain seized" over any disputes arising from the settlement. However, in Knipfel v York (Regional Municipality)1 Vice-Chair Price of the Human Rights Tribunal of Ontario (the HRTO) called into question the enforceability of this customary term.
Knipfel signifies a significant departure from the common understanding that where parties agree an arbitrator "remains seized" over disputes arising from a settlement, no other forum will have jurisdiction.
Tyler Knipfel was employed by the Regional Municipality of York (York) as a paramedic. York terminated Knipfel's employment in August 2012, and the union subsequently filed a grievance on Knipfel's behalf alleging there was no cause for termination.
On March 6, 2013, the union and York entered into minutes of settlement in respect of both the grievance and any related alleged human rights issues therein. As is common, the minutes of settlement provided for:
"...full and final settlement of any existing, planned or possible complaint(s) against York under the Human Rights Code up to the date of execution of the Release, arising out of or in respect of employment."
Additionally, the agreement provided that York would respond to any reference request by confirming only Knipfel's position, responsibilities and dates of employment.
On June 24, 2013, Knipfel brought a fresh application alleging new violations of the Human Rights Code (the Code). Knipfel claimed that in May 2013 York committed further discrimination against him on the basis of disability by providing a negative employment reference contrary to the minutes of settlement. In response, York brought a motion to have the fresh application dismissed on the basis of the full and final release contained in the minutes of settlement.
The HRTO's decision
The HRTO refused to dismiss Knipfel's application, noting that the release contained in the minutes of settlement only applied to past, not future, events. The HRTO also concluded the parties could not contract out of protections against future breaches of the Code as a matter of public policy. Since the negative employment reference occurred after the minutes of settlement were signed, the fresh allegation was not captured by the full and final release.
Of even greater significance, however, is the HRTO's response to York's argument that the HRTO had no jurisdiction to hear the matter. York submitted that Arbitrator Elaine Newman's continuing jurisdiction included any breach of the requirement to provide a neutral employment reference because the minutes of settlement expressly stated that she "remained seized."
The HRTO rejected York's argument, and found that it always has jurisdiction to hear a complaint under the Code. Vice-Chair Price concluded that "...parties can neither limit nor expand the Tribunal's statutory jurisdiction by their agreement."2 The vice-chair found further support for the HRTO's jurisdiction in section 45.9 of the Code, which permits parties to apply to the HRTO to address an alleged breach of a settlement.
Based on its determination that the HRTO's jurisdiction could not be ousted by any private agreement, the HRTO refused York's request to dismiss Knipfel's application. The HRTO concluded it had jurisdiction to hear the complaint despite the minutes of settlement and the agreement that Arbitrator Newman was "seized" of any matter arising therefrom.
Key points for employers
Employers and trade unions commonly enter into minutes of settlement stipulating that a grievor will withdraw a human rights allegation, and that any breaches of the minutes of settlement would be brought back before the arbitrator "seized" of the matter. Knipfel suggests that the HRTO will always have jurisdiction over cases involving human rights issues, even where its jurisdiction is concurrent with another forum. It remains to be seen how widely Knipfel will be adopted and what, if any, parallel litigation will arise from its strict application.
1 Knipfel v York (Regional Municipality), 2013 HRTO 1978.
2 Knipfel at para 21.
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