The Human Rights Tribunal of Ontario dismissed a discrimination application filed by a Humber Polytechnic worker 20 days after she signed a settlement agreement resolving her grievance, finding she was attempting to re-litigate matters already addressed through the collective bargaining process.
The tribunal found the worker knew or ought to have known there had been no finding of discrimination or reprisal before signing the memorandum of settlement but chose to proceed with signing it anyway, then filed a human rights application shortly after.
The worker started employment with the college in August 2001 and at the time of filing the application was employed as a program solutions IT specialist in the Faculty of Applied Sciences and Technology. She was a member of the support staff bargaining unit represented by the Ontario Public Service Employees’ Union, Local 563.
Grievance over position classification
In February 2019, the worker filed a grievance through her union alleging her position description form for the IT specialist position did not accurately reflect her duties and responsibilities and that she should have been on payband I instead of G. She sought retroactive compensation to December 2006.
Following a step 1 meeting in March 2019, the college confirmed in May 2019 it would adjust the worker’s position payband from G to I with retroactive payment back to February 2019. However, the worker and union did not agree to the period of retroactive payment.
The grievance entered the step 2 process and a meeting was held in June 2019. At issue were the payband, the period of retroactive payment, and for the first time, an allegation of discrimination on the basis of sex and gender because two of the worker’s colleagues had been re-evaluated to payband I in 2016, but her position description form had not been re-evaluated.
The college denied the grievance in July 2019. The union referred the grievance to arbitration but discussions continued between the parties.
Investigation of discrimination allegations
During a follow-up meeting in February 2020, the worker confirmed she contacted the Centre of Human Rights to raise concerns about discrimination.
A human resources business partner investigated the worker’s claim of discrimination. During the investigation, the worker raised for the first time an allegation of reprisal, submitting she was transferred to another faculty because she had filed a grievance.
The investigation concluded in October 2020 that the college had appropriately classified the position as payband I and amended compensation accordingly, that the Centre deemed the matter a pay issue resolved from a human rights perspective, and that there was no evidence to support that the transfer was reprisal for a grievance as transfer communications occurred prior to the step 2 hearing.
Settlement agreement signed
The worker received a draft memorandum of settlement in November 2020. In December 2020, the worker and representatives of the college and union signed the agreement.
The settlement included a one-time payment of $23,875.70 as retroactive payment to July 2016. The worker and union agreed to withdraw the grievance and not file any other grievance, complaint, application, claim or proceeding concerning the worker’s position description form.
The settlement stated it was not an admission of liability by the college and was entered into on a without prejudice or precedent basis. The worker acknowledged she had read the agreement, understood its terms, signed it voluntarily without duress or pressure, and had been fully and fairly represented by the union.
The worker filed a human rights application on Dec. 20, 2020, 20 days after signing the settlement. The facts alleged in the application were largely the same that gave rise to the grievance process.
Abuse of process finding
The tribunal held a written hearing to decide whether to dismiss the application because it constituted an abuse of process. The college filed submissions but the worker did not.
The tribunal found the allegations of discrimination based on sex were raised and discussed during the grievance process and during the investigation. The worker refused to settle the grievance until the investigation findings were made available in October 2020.
The tribunal found the worker knew or ought to have known there had been no finding of discrimination or reprisal before signing the settlement in December 2020. The worker acknowledged in her application that she took time to consider the settlement because the allegations of discrimination and reprisal were not addressed and she felt they ought to have been, but nevertheless signed it.
The tribunal found the worker and union had an opportunity to address the issues of discrimination based on sex and reprisal before signing the settlement but chose not to, and neither party took steps to amend the settlement to specifically include or exclude these issues.
The tribunal noted it has consistently found it is an abuse of process when an applicant attempts to split their case by raising issues in proceedings where they have been previously discussed and settled, then attempt to raise human rights issues in an application before the tribunal.
The tribunal found it would be an abuse of process and against the principles of judicial economy and the integrity of the justice system to allow the worker to proceed with the application. The allegations of discrimination and reprisal formed part of the grievance process, yet the worker and union chose to sign the settlement and evidently decided not to pursue those issues as part of it.
For more information, see (Plaintiff) v. Humber Polytechnic, 2026 HRTO 47 (CanLII)
