- within Employment and HR topic(s)
- with Senior Company Executives, HR and Finance and Tax Executives
- in United States
- with readers working within the Healthcare, Metals & Mining and Telecomms industries
Introduction
Out-of-court settlements with respect to union grievances culminating in releases of all claims arising from related matters are a well-established practice. However, when settlement occurs in one forum, is an employee within their rights to pursue a claim in another, such as the Ontario Human Rights Tribunal (the "Tribunal")?
These issues arose in Gervais v. Ottawa (City), 2025 HRTO 1718, where the Tribunal considered whether a prior union grievance and settlement could render an employee's human rights application as an abuse of process. Successfully argued, on behalf of the applicant, by McCague Borlack LLP's Martin Smith and Olivia Polihronis, the decision clarifies the principles guiding abuse of process, duplication of proceedings, and the scope of settlements in the employment context.
Background
The Applicant was employed as a paramedic with the City of Ottawa (the 'Respondent'). In September 2019, the Applicant commenced medical leave and began receiving WSIB benefits.
On April 6, 2021, the Respondent posted an opportunity to work with the Community Paramedicine Team of the Ottawa Paramedic Services. When the Applicant submitted an expression of interest in response to the posting, she was told she would not be considered for the position because she had not been providing care as a paramedic for an extended period of time due to her medical leave. Upon receipt of her rejection for the position, the Applicant discovered that a colleague who had taken parental leave of roughly the same duration had their application accepted. As a result, the Applicant filed a Human Rights Application (the "Application") alleging discrimination on the grounds of disability, contrary to the Human Rights Code R.S.O. 1990, c. H. 19.
A few months later, the Applicant contacted her Union regarding the filing of a grievance against the Respondent due to their failure to consider her for the assignment. The Union investigated the potential issue and took the position that there were no grounds to establish an individual grievance on behalf of the Applicant at that time.
On July 30, 2021, the Respondent issued guidelines for Expressions of Interest Positions (the "Guidelines"). On August 24, 2021, the Union later filed a policy grievance regarding these Guidelines on behalf of the Applicant and other employees, indicating that they violate the Collective Agreement. This policy grievance was resolved on April 6, 2023, through the execution of Minutes of Settlement (the "Settlement") and a Memorandum Agreement (the "Agreement").
Issues at the Human Rights Tribunal of Ontario
On April 24, 2024, the Respondent brought a Request for an Order During Proceedings to have the Applicant's claim dismissed on the grounds of abuse of process. The issue at the preliminary hearing was whether the Tribunal should dismiss the Application as an abuse of process in consideration of the Settlement and Agreement.
The Respondent argued that the Settlement and Agreement encompassed all of the Applicant's human rights allegations and remedies, and that the Settlement was a bar to any future claims brought by the Applicant against the Respondent with respect to claims arising from the Guidelines.
The Applicant argued that the Applicant's individual issues were not dealt with in the August 2021 policy grievance, and therefore, were not settled by the Settlement nor the Agreement.
Decision and Rationale
Previous Tribunal decisions have held that continuing an application can constitute an abuse of process where the same issues have already been resolved in another forum. However, the Tribunal found the Applicant's case to be distinguishable: the Settlement was not between the Applicant and the Respondent but rather involved a group of employees and addressed a policy grievance concerning Guidelines that did not exist at the time of the alleged discriminatory events affecting the Applicant.
It was held that the Settlement did not specifically address the relief demanded in the grievance with respect to employees who were inappropriately denied work assignments prior to the execution of the Settlement, such as the Applicant. Therefore, the Applicant herself has not had the opportunity to address her specific claims in another forum, and the Respondent has not had to defend against the claims in another forum.
Ultimately, it was held that the event of discrimination alleged by the Applicant occurred over three months before the Guidelines were published, and therefore, the Settlement was not a bar to the Application continuing in the Tribunal's processes, and that it would not be an abuse of the Tribunal's process for it to do so.
Conclusion/Takeaways
This decision ultimately addresses the intersection between human rights applications and parallel labour relations processes, particularly where collective agreements, policy grievances, and settlements may overlap with individual claims.
The continuation of the Applicant's application confirms that a settlement addressing broader or collective issues does not prevent an individual from pursuing a claim when their specific concerns are not resolved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
