Luo v. Dell Canada, 2009 HRTO 905

Human Rights Tribunal of Ontario

B E T W E E N:

Laura Luo

Applicant

-and-

Dell Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price
Date: June 24, 2009
Citation: 2009 HRTO 905
Indexed as: Luo v. Dell Canada

1This Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended, (the “Code”), alleges that the respondent discriminated against the applicant on the basis of sex by terminating her employment while she was pregnant, approximately one month before she was due to give birth.

2The purpose of this Interim Decision is to consider the respondent’s Request for Dismissal of the Application on the basis that the applicant signed a full and final release with respect to the subject-matter of the Application.

3The respondent maintains that the applicant’s termination was a result of company-wide restructuring and was not based on her sex or pregnancy or any other prohibited ground under the Code. The respondent alleges that on or about July 9, 2008, approximately seven weeks prior to the termination of the applicant’s employment, it offered her a settlement and compensation package upon the termination of her employment on August 29, 2008. The proposed settlement included a requirement that the applicant execute a Final Release in favour of the respondent, which was attached to the July 9, 2008 settlement offer. The settlement offer and the Final Release, allegedly signed by the applicant on August 29, 2008, were filed with the Response.

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 and all manner of actions, causes of action… loss or injury of every nature and kind whatsoever … or any claims under applicable …human rights” and also “undertakes to not initiate any claim or file any complaint under the terms of applicable federal or provincial legislation, including those pertaining to … human rights.”

5The respondent submits that the bringing of the Application by the applicant constitutes an abuse of process in the circumstances and that the Tribunal should dismiss the Application in its entirety.

6It is appropriate for the Tribunal to decide, as a preliminary matter, the respondent’s Request for dismissal.

7Section 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 conference call 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.

8The following directions shall apply to the conference call:

(a) 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.

(b) If either party wishes to rely on any written materials (such as written submissions, documents or case law) or facts not contained in the Application or Response, they must deliver any such additional written materials or a written statement outlining any additional facts they wish to rely upon to the other party and file it with the Tribunal at least 14 days before the conference call.

9I am not seized of this matter.