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Lawyer’s Letter to OLRB Binds Unhappy Employee to Safety-Reprisal Settlement

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The Ontario Labour Relations Board has held that an employee and employer settled a safety-reprisal complaint, due to the employee’s lawyer’s letter to the OLRB advising that the parties had reached an “agreement in principle”.

The employee had filed a complaint under section 50 of the Ontario Occupational Health and Safety Act alleging that he had suffered reprisal for seeking to enforce his safety rights under the OHSA.

In September 2011, the parties reached an “oral agreement in principle”.  On the same day, the employer’s lawyer sent proposed Minutes of Settlement and a Full and Final Release to the employee’s lawyer and invited “questions or concerns”. The next day, the employee’s lawyer requested changes, and the employer’s lawyer sent him revised Minutes of Settlement the same day. On that day, the employee’s lawyer wrote the Ontario Labour Relations Board to advise that an agreement in principle had been reached.

After numerous discussions between the lawyers, the employee’s lawyer wrote to the OLRB to advise that the employee would not be signing the Minutes of Settlement, and that the lawyer would no longer be representing the employee.  The lawyer’s closing letter to the employee indicated that the parties were “close to settlement”.

At the OLRB, the employee’s new lawyer argued that there was no settlement.  He relied upon section 96(7) of the Labour Relations Act - incorporated into the OHSA by section 50(3) of the OHSA.  Section 96(7) provides that where “the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties . . .”

The OLRB held that there was a binding settlement, due to the lawyer’s letter to the OLRB.  Subsection 50(3) of the OHSA provides only that the OLRB “may” - not “must” – inquire into a safety-reprisal complaint under the OHSA.  As such, the OLRB may dismiss a complaint that has been settled, even where the settlement is not in writing

Winston H. Gregory, http://canlii.ca/t/fqsr7