Human Rights Tribunal of Ontario
B E T W E E N:
Gilda Bazaes
Applicant
-and-
West Janitorial Inc. and Jeffrey Clarke
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Date: September 1, 2010
Citation: 2010 HRTO 1795
Indexed as: Bazaes v. West Janitorial
[1] The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on February 18, 2010 alleging discrimination in employment on the basis of disability.
[2] The Notice of Application was served on the respondents on April 8, 2010 directing the respondents to file a Response no later than 35 days from April 8, 2010. No Response was received.
[3] On May 20, 2010, counsel for the applicant filed a Request to Withdraw (Form 9) on behalf of the applicant. On June 3, 2010, counsel for the applicant advised the Tribunal that the Request to Withdraw was filed on the understanding that the matter had been settled; however, since the respondents “failed to provide the cheque in the amount agreed upon to settle this matter despite phone calls and a letter”, the applicant was seeking to withdraw the Form 9 and proceed with the matter. On June 21, 2010, the Tribunal issued a second Notice of Application and directed the respondents to file their Response no later than 35 days from June 21, 2010.
[4] On July 20, 2010, the respondents filed a Form 2 Response, including a Request for Early Dismissal (without a full Response). The respondents request early dismissal of the Application on the basis that applicant signed a Full and Final Release settling the Application. The respondents indicate that payment was issued by way of cheque and mailed to the applicant at the end of May; however, the applicant returned the cheque on June 11, 2010 on the basis that payment was not received in a timely manner. The respondents assert that the settlement agreement did not specify a deadline by which payment was required to be made and, as such, the applicant should not be allowed to proceed with the Application.
[5] The applicant filed Reply submissions providing further details of the chronology with respect to the parties’ settlement discussions and copies of supporting documentation.
[6] It appears that the parties’ settlement document was entitled “Full and Final Release” and included a provision wherein both parties released each other of any claims. The document included a line for the applicant’s signature and a line for a signature on behalf of the corporate respondent. It appears that on May 7, 2010, the applicant signed her portion of a settlement agreement. This document was faxed by counsel for the applicant to the respondents for signature and included a cover letter setting out signing instructions and directions regarding payment. It appears that on May 18, 2010, counsel for the applicant faxed a letter to the respondents advising that if payment was not received by June 2, 2010, the applicant would take steps to proceed with the Application. In the absence of a response from the respondents, the Tribunal was asked to withdraw the Form 9 Request to Withdraw on June 3, 2010.
[7] On June 11, 2010, counsel for the applicant received payment from the respondents; however, this payment was returned because the applicant considered the settlement to be void. It is unclear whether the payment received by the applicant also included the respondents’ signed release.
[8] Before the Tribunal can determine whether or not the applicant is precluded from pursuing the Application because of signing a full and final release, it is appropriate for the Tribunal to determine as a preliminary matter whether the parties reached a settlement of the Application and, if so, whether there is a settlement binding on the parties pursuant to section 45.9(1) of the Code, which states:
If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.
[9] The Tribunal makes the following Order:
i) The respondents are required to file with the Tribunal and serve upon the applicant a complete Form 2 Response within 21 days of this Interim Decision and to provide written submissions with respect to whether or not the parties reached a settlement of the Application and, if so, whether the settlement, was agreed to in writing and signed by the parties, within the meaning of s. 45.9(1) of the Code.
ii) The applicant is required to file with the Tribunal and serve upon the respondents a Form 3 Reply and any submissions in response to the respondents’ submissions regarding settlement within 14 days of receipt of the respondents’ materials; and
iii) If anyone of the parties fail to file materials in accordance with this Interim Decision, the Tribunal will make a decision based on the information before it.
[10] I am not seized.
Dated at Toronto, this 1st day of September, 2010.
“Signed by”
Ena Chadha
Vice-chair