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166-2-24127 (2000 PSSRB 114)
Skandharajah and Treasury Board (Employment and Immigration Canada)
Before: G. Gigučre
Appearances: S. McGee, for the Grievor; R. Jaworski, for the Employer
Decision rendered: December 14, 2000
Jurisdiction – Termination (disciplinary) – Settlement – Inadmissible evidence – Mediation - effective March 3, 1993, the employer terminated the employment of the grievor, an employment counsellor, for acting without proper authorization in processing certain documents and for approving documents which she knew were forged – the hearing into the referral to adjudication of her grievance was postponed several times at the request of either the employer or the grievor pending the conclusion of criminal proceedings against the grievor – these criminal proceedings were eventually either dropped or stayed – subsequently, a settlement of the grievance was reached by the grievor and the employer through mediation – several weeks later, the grievor advised the Board that she wished to rescind the agreement reached through mediation and to have her grievance determined at adjudication – the employer objected on the basis that the grievance had been settled and that the parties were bound by that settlement agreement – the grievor did not dispute that she had entered into the settlement agreement but claimed that she had been pressured into doing so by her union representative – in addition, she alleged that the agreement had been conditional or tentative – the grievor acknowledged that during the mediation session the employer's representatives were in another room and she never spoke to them – the grievor attempted to adduce evidence regarding what the mediator had said or done at the mediation session – the employer objected to the admissibility of such evidence on the ground that it was confidential – the adjudicator indicated that it was a recognized rule before labour arbitration boards that any communication between a mediator and the parties was confidential and therefore not admissible as evidence – furthermore, a qualified privilege attached to a mediation session as an extension of the privilege which attached to settlement negotiations arising out of litigation – accordingly, the adjudicator ruled that the evidence which the grievor wished to introduce regarding what the mediator had said or done at the mediation session was not admissible – having heard the evidence, however, the adjudicator also indicated that, even if it had been admissible, it would not have affected the outcome of this proceeding – furthermore, to succeed in vitiating the agreement on the basis of duress or distress, it would be necessary for the grievor to establish that the employer's conduct, rather than that of her union representative, was responsible for the grievor's inability to give a valid consent to the agreement – the grievor's distress could not be raised against the employer since there was no evidence that her distress was the result of improper conduct by the employer, whose representatives were at all times in a different room than the grievor during the mediation session – in addition, there was no medical evidence that the grievor's capacity to enter into an agreement had been affected by emotional distress – neither did the evidence support her allegation that the settlement agreement had been conditional or tentative – the adjudicator determined that the grievor had entered into a binding settlement agreement and that she had the emotional, physical and intellectual capacity to give her consent – accordingly, there was no longer any dispute between the parties and therefore no matter to be determined by an adjudicator.
|Cases cited:||R. v. Mirkhandan,  O.J. No. 3215 (Q.L.); Slavutych v. Baker,  1 S.C.R. 254; Marchand (Litigation guardian or) v. Public General Hospital of Chatham,  O.J. No. 1805 (Q.L.); MacDonald v. Canada,  F.C.J. No. 1562 (Q.L.); Bhatia (166-2-17829).|