Gilda Bazaes v. West Janitorial Inc. and Jeffrey Clarke, 2010 HRTO 2006

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: Alison Renton

Date: September 30, 2010

Citation: 2010 HRTO 2006

Indexed as: Bazaes v. West Janitorial

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 February 18, 2010 alleging discrimination in employment on the basis of disability.

2The 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.

3On 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.

4On 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.

5The applicant filed Reply submissions providing further details of the chronology with respect to the parties' settlement discussions and copies of supporting documentation.

6It 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.

7On 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.

8In an Interim Decision, 2010 HRTO 1795, the Tribunal stated that before it 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.

9In the Interim Decision, the Tribunal ordered the respondent to file a Response and the applicant to file a Reply and both have done so.

10In these circumstances, the Tribunal finds that it is appropriate to schedule a half day in-person hearing in order to address the preliminary matter of whether the parties reached a settlement of the Application and whether the settlement is binding on the parties in accordance with section 45.9(1) of the Code.

11Accordingly, the Tribunal orders:

a) a half day in person hearing will be scheduled to determine the preliminary matter of whether the parties reached a settlement of the Application and whether the settlement is binding on the parties;

b) any party that wishes to rely upon any material (facts, documents or caselaw) not currently before the Tribunal shall deliver such other material to the other party and file it with the Tribunal within 21 days of the date of this Interim Decision.

12I am not seized with this matter.