Farima Ramezani-Namin v. IBM Canada Limited, 2009 HRTO 1073

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Farima Ramezani-Namin Applicant

• and -

IBM Canada Limited Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: July 20, 2009 Citation: 2009 HRTO 1073 Indexed as: Ramezani-Namin v. IBM Canada

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H-19, as amended, (the “Code”), on April 27, 2009, alleging discrimination in employment on the basis of sex (pregnancy).

2The applicant identified her former employer, IBM Canada Inc., as the sole respondent. In its Response, the respondent employer advises that it was incorrectly named and its proper name is “IBM Canada Limited”. The style of cause is amended to reflect the correct name of the respondent.

3The respondent did not file a full Response to the Application. Rather, the respondent requested the Application be dismissed on an early basis because of a General Release signed by the applicant on February 23, 2009. Along with its Request, the respondent provided a copy of the signed release and accompanying correspondence setting out the terms and conditions of the applicant’s employment termination. The respondent contends that the applicant’s termination of employment was a result of a company-wide resource action program and was not based on her sex or pregnancy.

4The respondent requests that the Tribunal dismiss the Application in its entirety based on the Release, which, among other things, includes a provision that the applicant releases the respondent from “any claims arising out of her employment or the termination of her employment” and moreover the applicant specifically “represented and warranted that she had no claims or complaint against IBM under the Ontario Human Rights Code.” The respondent submits that the applicant’s allegations in her Application are barred by the General Release.

5In her Reply, the applicant alleges that at the time of her signing the employment separation papers she was provided with two reasons for her dismissal: specifically, that her position had been eliminated and that she was the lowest contributor. The applicant alleges that only after her departure did she later discover through colleagues that these reasons were untrue. The applicant contends her position has not been eliminated and that there were employees who were lower contributors.

6In the circumstances, it is appropriate to determine the respondent’s Request for early dismissal and the issue of the release as a preliminary matter. Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions. Accordingly, the Registrar will schedule a half day teleconference hearing for the purposes of hearing submissions on the issue of whether the Tribunal should dismiss the Application as a result of the applicant having signed a release.

7The Tribunal makes the following orders:

(a) If the parties consent, this preliminary issue may be decided on the basis of written submissions or by way of a teleconference. Within 10 days of the date of this Interim Decision, the parties must advise the Registrar of their consent to participate by way of either written submissions or teleconference;

(b) Should the matter proceed by way of teleconference, the applicant should be prepared to proceed first, by responding to the respondent’s written submissions, filed with its Response, with regard to the signed release; and

(c) If either party wishes to rely on any written materials (such as written submissions, documents or case law) or information not contained in the Application, Response or Reply, they must deliver any such additional written materials or a written statement outlining any additional information they wish to rely upon to the other party and file it with the Tribunal no more than four (4) weeks after the date of this Interim Decision.

8I am not seized of this matter.