Union Grievances and Discrimination Under the Human Rights Code

• Author: Gabriel Granatstein
• Date: January 27, 2016

Can a unionized employee who received settlement money as a result of a union grievance also make an application under the Human Rights Code, alleging discrimination as a result of the same situation? Two recent cases of the Ontario Human Rights Tribunal have addressed this issue with opposite outcomes. In Ma v University of Toronto, an employee’s application was allowed to continue, whereas in Sikorski v Vaughan (City), the employee’s application was dismissed.

The tribunal reached these decisions after interpreting Section 45.1 of the Code, which states that: “The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.” It is well-settled law that settlements of grievances constitute proceedings. The outcome of each was decided primarily on the basis of whether the settlement was voluntary on the part of the employee.

In Ma v University of Toronto, the settlement was not held to be binding because the employee did not voluntarily agree to it. They did not sign the Memorandum of Settlement, and the settlement funds were deposited in the employee’s bank account without any necessary action on the part of the employee. The Tribunal found that there was no choice given to the applicant to accept or reject the payment and Memorandum of Settlement. The...