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Reasonable settlement offer prevents litigious complainant from proceeding

settlement offerA recent decision of the BC Human Rights Tribunal (“Tribunal”) serves as a useful reminder of the utility of a reasonable settlement offer, which can result in the Tribunal putting an end to complaint proceedings without a hearing. In Sebastian v. Vancouver Coastal Health and others (No. 3), 2017 BCHRT 1, the Vancouver Coastal Health Authority (“VCH”) made a reasonable settlement offer and succeeded in having a human rights complaint filed by a litigious employee dismissed by the Tribunal under section 27(1)(d)(ii) of the Human Rights Code, thereby avoiding a 15–day hearing.

Background

Joseph Sebastian is an employee of VCH and member of the Health Sciences Union. Mr. Sebastian filed a human rights complaint alleging that VCH discriminated against him when it allegedly failed to accommodate his disability. Mr. Sebastian had also filed numerous grievances against VCH which included the same allegations. The Tribunal deferred Mr. Sebastian’s human rights complaint for a period of time pending completion of the grievance proceedings.

At the hearing of the grievances, VCH and the Union agreed to resolve the grievances, and the arbitrator set out the terms of settlement in a “Consent Award”. Among other things, VCH and the Union agreed to a specific return to work plan and lost wages for Mr. Sebastian, though the parties were not able to resolve the human rights complaint within the grievance proceedings.

With the grievances resolved, VCH made a formal “with prejudice” offer to Mr. Sebastian in an attempt to settle his human rights complaint. VCH’s settlement offer included paying a further $15,000 as damages to Mr. Sebastian for any injury to dignity that he may have suffered and providing its recognition of how difficult and trying the accommodation experience had been for him, without admitting any liability. When Mr. Sebastian refused the offer, VCH applied under section 27(1)(d)(ii) of the Code to have his complaint dismissed.

Decision

Under section 27(1)(d)(ii) of the Code, the Tribunal can exercise its discretion to dismiss a complaint where it does not further the purposes of the Code due to the presence of a settlement offer. To be successful, the settlement offer must:

  1. Be “with prejudice” so that it can be considered by the Tribunal;
  2. Fully address the allegations and available remedies, both monetary and non–monetary;
  3. Adequately remedy the alleged violation and be consistent with the types of orders the Tribunal might make if the complaint was successful;
  4. (If applicable) provide a monetary award within the reasonable range that the Tribunal might award if the complaint were found to be justified; and
  5. Remain open for the complainant’s acceptance even if rejected and even if the Tribunal were to dismiss the application to dismiss.

The Tribunal reviewed the evidence and concluded that:

  • the complaint addressed the same subject matters as the grievances, which were resolved, and “the Tribunal is governed by principles that prevent re–litigation of decided issues”;
  • despite stating his opposition to the terms of the Consent Award, Mr. Sebastian: i) actively participated in the grievance proceedings and was aware that the Union intended to settle the accommodation disputes by way of the Consent Award, ii) enjoyed the financial “fruits” of the Consent Award, and iii) did not take any action against the Union for representing him in the Consent Award negotiations;
  • the Consent Award was intended to address all of Mr. Sebastian’s claims relating to the accommodation of his disability and provided for clear financial compensation for lost wages; and
  • Mr. Sebastian was unlikely to receive an injury to dignity award greater than $15,000.

In light of the above, the Tribunal dismissed the complaint as it would not further the purposes of the Code to permit it to proceed to a hearing. The Tribunal considered that Mr. Sebastian seemed content to take what he could from the Consent Award, and then sought to improve on his position by pursuing a complaint based on substantively the same issues. In dismissing Mr. Sebastian’s complaint, the Tribunal highlighted that “there is a strong public policy interest in encouraging parties to resolve their disputes on a voluntary, consensual basis” (at para. 169).

Conclusion

Given the cost of proceeding to a hearing of a complaint, particularly when faced with a particularly litigious complainant, this decision serves as a good reminder to respondents that, in appropriate circumstances, a reasonable offer to settle can provide a useful and effective tool to have a complaint dismissed. It is also a good decision for unionized employers who, in good faith, resolve workplace grievances with the full participation and consent of the union, ensuring that employees cannot take the benefits of that consensual resolution and then shop around for another forum to try and improve their position, based on the same dispute.

By: Ryley Mennie, McCarthy Tétrault LLP

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Employer Advisor, McCarthy Tétrault LLP

Employment and labour lawyers at McCarthy Tétrault LLP
McCarthy Tétrault through their Employer Advisor blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more
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