Jeanne Bielman v. Casino Niagara/Complex Services Inc., 2009 HRTO 123

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeanne Bielman

Applicant

-and-

Casino Niagara/Complex Services Inc.

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: February 4, 2009

Citation: 2009 HRTO 123

Indexed as: Bielman v. Casino Niagara

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 October 19, 2008, alleging discrimination in employment on the ground of disability. The respondent is the applicant’s former employer.

2The respondent filed a request for early dismissal on the basis that the applicant participated in a voluntary resignation program, received compensation and signed a full and final release which precludes claims under the Code.

3On December 9, 2008, the Tribunal issued an Interim Decision directing the parties to file submissions on the issue of the release, Bielman v. Casino Niagara, 2008 HRTO 378. Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application without affording the parties a chance to make oral submissions. However, the parties consented to having the issue determined on the basis of their written submissions.

4There appears to be no dispute about the basic facts associated with the voluntary resignation program offered by the respondent. The program was announced on or about April 25, 2008. Employees accepted into the program would be paid an amount equal to three weeks’ wages per year of service to a maximum of 26 weeks and their participation in the respondent’s health care plan would be extended for a specified period of time.

5The applicant commenced her employment with the respondent on or about October 22, 1997 as a Table Games Dealer. At the time that the voluntary resignation program was announced in April 2008, the applicant was off work and in receipt of long-term disability benefits through the respondent’s disability insurance provider. The applicant had been advised that she would no longer be eligible for disability benefits as of May 28, 2008.

6The applicant verbally advised the respondent that she wished to participate in the program on or about April 26, 2008. The applicant was advised that her application for voluntary resignation was accepted by letter dated May 27, 2008. The applicant received the sum of $15,668.64 in consideration of executing a full and final release. The applicant’s health care benefits were extended by the respondent until November 26, 2008. The release, signed by the applicant and dated May 27, 2008, a copy of which was filed by the respondent, explicitly included claims arising under the Code.

7The respondent’s position is that the applicant, who initiated the request, was not under any obligation to apply to participate in the voluntary resignation program. The respondent also alleges that it was prepared to accommodate the applicant and that a position was available for her to return to once her disability benefits ceased on May 28, 2008.

8The applicant’s position is that she initiated the discussion about the voluntary resignation program with the respondent because she was desperate as a result of the following circumstances:

a. she was very ill at the time;

b. her long-term disability benefits were coming to an end on May 28, 2008 (she has since successfully had her benefits reinstated for a limited period of time);

c. once the disability benefits ceased, she was facing the prospect of not being able to afford a drug that was important to the treatment of her medical condition;

d. she had been told that the respondent would not be able to accommodate her in the full time position she previously occupied even if she was capable of returning to work when her disability payments ceased. Instead of a full time position, the applicant was offered a contract position as a greeter at the Casino for approximately four months with no guarantee of renewal.

9The applicant made her first inquiry about the voluntary resignation program on the same day that she was told that she could not be accommodated in a permanent, full time position. The applicant alleges that she took the action she did because she was in a state of panic about her circumstances and believed that the program was her only viable option. Notwithstanding her admission that she thought she was doing the right thing at the time of the signing of the release, the applicant clearly alleges that her desperation was connected to the limited return to work options that appeared to be available to her. In addition, the applicant did not have the benefit of legal advice at the time of the signing of the release.

10The 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.

11In Dube v. Rockhaven Recovery, 2009 HRTO 53, the applicant accepted a severance package and signed a release explicitly precluding any future claims under the Code. Despite the language of the release, the applicant commenced a small claims court action for wrongful dismissal and filed a complaint with the Ontario Human Rights Commission. The applicant signed a second release in relation to the small claims court proceeding. At the time of the signing of the second release the applicant failed to disclose that he had commenced a human rights complaint. In those circumstances, the Tribunal found that it would be manifestly unfair to the respondent and an abuse of the Tribunal’s process to allow the application to proceed. The Tribunal found that the applicant had not raised any Code-related issues which may have prevented him from understanding the issues or the documents he was signing, nor was there evidence of duress.

12In my view, at this early stage in the Application, there is insufficient evidence to conclude that it would constitute an abuse of the Tribunal’s process to allow this Application to proceed to be heard on the merits. The applicant’s allegation that she acted out of desperation in seeking to avail herself of the voluntary resignation program is directly connected with her allegation that the respondent failed to accommodate her. I have considered whether an oral hearing on the connection between the duty to accommodate and the release would have been of assistance in deciding this request for early dismissal. I have concluded that the evidence required to deal with this issue as a preliminary objection would essentially be the same as the evidence required to decide the case on the merits.

13I make no findings on the veracity or legal validity of the positions put forward by the applicant and the respondent. It remains open to a member of the Tribunal, weighing all of the evidence at the conclusion of the hearing of this case to determine what role, if any, the release will play in the ultimate disposition of this Application.

14Accordingly, the matter will proceed to a hearing on the merits, at which the parties will be entitled to make arguments on the effect of the signing of the release.

15I am not seized of this matter.