Xiulei Jing v. Dell Canada Inc., 2009 HRTO 435

Human Rights Tribunal of Ontario

B E T W E E N:

Xiulei Jing Applicant

-and-

Dell Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: April 14, 2009 Citation: 2009 HRTO 435 Indexed as: Jing v. Dell Canada

1This is an Application filed January 19, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The purpose of this Interim Decision is to consider the respondent's request for early dismissal of the Application because of a release signed between the parties upon the termination of the applicant's employment with the respondent.

2In this Application, the applicant alleges discrimination in employment on the basis of sex. She claims that she was discriminated against for being pregnant when she was terminated one month prior to her delivery due date.

3The respondent filed a partial Response in which it maintains that the applicant's termination was a result of company-wide restructuring and was not motivated by any discriminatory considerations. Rule 8.2(a) of the Tribunal's Rules, provides that a complete Response is not required where a respondent alleges that the issues in dispute are the subject of a full and final release between the parties.

EARLY DISMISSAL OF THE APPLICATION

4The respondent states that the applicant signed a release as part of a settlement and compensation package upon the termination of her employment. The respondent filed a copy of the release with the Tribunal. The respondent relies on the following portion of the release, among others, in support of its position that the applicant specifically and unambiguously released the respondent from any claim under the Code:

I hereby undertake to not initiate any claim or file any complaint under the terms of applicable federal or provincial legislation, including those pertaining to securities regulation, employment standards, human rights, pay equity, occupational health and safety and/or workplace safety and insurance, including any rights to further compensation or reinstatement.

5On the basis of this release, the respondent asks for early dismissal of the Application. In the circumstances, it is appropriate for the Tribunal to decide, as a preliminary matter, the respondent's request for early dismissal.

6Section 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 teleconference to hear submissions on the issue of whether the Tribunal should dismiss the Application as a result of the applicant's having signed a release.

7The following directions shall apply to the conference call:

(a) The applicant should be prepared to proceed first, by responding to the respondent's written argument with regard to the signed release.

(b) If either party wishes to rely on any written materials (including written submissions, documents or case law) or facts not contained in the Application or Response, they must deliver such additional material to the other party and file it with the Registrar no later than two weeks before the date of the conference call.

8I am not seized of this matter.