The Ontario Human Rights Tribunal in Oxley v. Gus Brown Pontiac Buick GMC considered whether a release signed by a terminated employee was effective to bar her human rights complaint. The release included a provision that released the employer from complaints under the Ontario Human Rights Code.
The applicant claimed that the release was not enforceable to bar her application under the Code because, in part, she "was under considerable stress as a result of an ongoing family dispute". There were other arguments and you can read them in the case.
The preliminary issue to be decided was the effect of the release on the complaint. The fact that the release expressly forecloses a human rights complaint does not end the inquiry. The Tribunal stated in Bielman v. Casino Niagara that:
The Code does not explicitly bar applications such as this where a release has been signed by the applicant. In each case where a respondent requests early dismissal of an application, the Tribunal must decide whether, in the circumstances, it would constitute an abuse of the Tribunal’s process to allow the application to proceed to a hearing on the merits. An important consideration in that analysis is the respondent’s reasonable expectation that a release of this kind will bring finality to any employment related dispute they may have with a former employee.
As the Tribunal noted in Oxley, failure to uphold releases "and to hold parties to their commitments, can undermine the integrity of negotiated settlements and hinder the timely and informal resolution of disputes." True enough.
The Tribunal also considered the leading case of Pritchard v. Ontario (Human Rights Commission). While this was decided under the old-Code, the Tribunal nonetheless held that the Pritchard-factors "can be useful in determining whether it would be an abuse of process to proceed with a hearing on the merits". Those factors are:
- whether the party fully understood the significance of the release;
- whether she received sufficient and fair consideration for signing the release;
- evidence of economic pressure; and
- evidence of psychological or emotional pressure amounting to duress.
The Tribunal found that there was no "severe financial pressure or at imminent risk of adverse health consequences" nor was there any "misrepresentation in the negotiations that led to the signing of the release". Accordingly, the Tribunal dismissed the application.
Bielman was considered by the Tribunal in a number of cases.
In Arrindell v. Toronto Marriott Downtown Eaton Centre, an employee was terminated after 18 years employment and offered 11 months salary and benefits in return for her signing a release. She retained a lawyer (two it seems) who assisted in negotiating a settlement. Although the employer would not change its original offer the employee signed a release that included a release of claims under the Human Rights Code. The Tribunal dismissed the application on the basis that it was an abuse of process:
The applicant did not articulate any compelling reasons why the settlement and Release should not be binding on her. I find that she understood the consequences of what she was signing. I also find that there was good and sufficient consideration for the Release. She had the benefit of independent legal advice and took several months before executing the Release.
The Tribunal commented on the "economic pressure" faced by the applicant:
If a settlement freely arrived at can be avoided merely by asserting economic pressures, the incentive for the parties to resolve their disputes without a hearing will be gone and every such claim will have to be fully adjudicated.
The effect of a release (including Bielman) was considered in a unionized setting in Ababio v. Humber River Regional Hospital. The tribunal dismissed the application and discussed delay, but went on to discuss the release. Among other things, the Tribunal noted that:
There may be circumstances where the Tribunal will look behind the terms of an agreement to settle to determine whether the there are Code-related issues which may have forced the applicant into the settlement (see for example Bielman and Casino Niagara/Complex Services Inc. 2009 HRTO 123 (CanLII), 2009 HRTO 123 (CanLII). In this case, however, there is no claim that there was a nexus between the settlement and the applicant’s disability.
The Tribunal in Ababio discussed the purpose of the Code provisions as relates to claims against a Union:
The allegations against the union focused on its representation of the applicant as bargaining agent, which was dealt with in the applicant’s complaints to the OLRB. As stated in Barton v. Miller, 2008 HRTO 205 (CanLII), 2008 HRTO 205 (CanLII), the Code is not intended to address issues of misconduct or incompetence which that are not based on a prohibited ground.
The Tribunal also dismissed the application in Jiang.
It is clear that, in an appropriate case, a full and final release that clearly encompassed claims under the Code can be enforced so as to result in the dismissal of an application under the Code. This is not to say that the fact that an employee signed a release is an automatic full-stop. The Tribunal will be called upon to conduct an analysis of the surrounding circumstances surrounding the signing of the release and the factors emerging from the case law.
While the role of the Commission has changed under the new Code, you can read the Human Rights Commission Policy Guide to Releases with Respect to Human Rights Complaints.