Sutherland v. Bradstock, 2010 HRTO 525

Human Rights Tribunal of Ontario

B E T W E E N:

Raquel Sutherland

Applicant

-and-

Jamie Bradstock

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: March 10, 2010

Citation: 2010 HRTO 525

Indexed as: Sutherland v. Bradstock

1This Interim Decision deals with a request to withdraw the Application against one respondent, Dan Camirand, and a request for the early dismissal of the Application against the other respondent, Jamie Bradstock, on the basis that the applicant has signed a full and final release in respect of the subject matter of the Application that applies to Mr. Bradstock.

Background

2In her Application, the applicant identified three respondents, Just Energy Corp. (“Just Energy”), Daniel Camirand and Jamie Bradstock. The applicant’s allegations centre on when she returned to work for Just Energy in August 2009 following a maternity leave. The applicant alleges that after she communicated her intent to take a further maternity leave, she was harassed and inappropriately disciplined before being unfairly terminated in October 2009. The applicant identifies Jamie Bradstock as her “boss” and the person largely responsible for the discriminatory treatment.

3It is relevant to note that Mr. Bradstock is not an employee of Just Energy. It appears that for the period of August to October 2009 he was an independent contractor acting as the regional distributor for Just Energy in its Kitchener regional branch which is where the applicant worked. The Application further alleges that Mr. Camirand, the applicant’s former employer, also discriminated against her by refusing to pay her certain agreed upon wages after she left his employ and began to work for Just Energy.

4In an Interim Decision dated January 25, 2010 (2010 HRTO 151), the Tribunal accepted a request from the applicant to withdraw her Application against Just Energy on the grounds that Just Energy and the applicant had entered into a settlement and had signed a release.

5The Interim Decision asked for submissions on a request from Mr. Camirand for a deferral of the Application against him given the applicant was pursuing a claim against him pursuant to the Employment Standards Act, 2000. The Interim Decision also asked for submissions on a request from Mr. Bradstock for early dismissal of the Application against him on the basis that the final release the applicant signed with Just Energy also applied to him.

Request to Withdraw

6On January 20, 2010, the applicant formally filed a request to withdraw her Application against Mr. Camirand, a request that Mr. Camirand has consented to. It appears this follows a mediation before the Ontario Labour Relations Board that the parties considered to have sufficiently resolved their dispute. The Tribunal accepts this withdrawal and the style of cause is amended to remove Mr. Comirand as a respondent.

Request for Early Dismissal by Jamie Bradstock

7Both Mr. Bradstock and the applicant have provided submissions to the Tribunal. The applicant argues that Mr. Bradstock could be considered her employer under Ontario law and given that it was his personal treatment of the applicant that was central to her Application he should remain a named respondent.

8Mr. Bradstock principally argues that he has never been the applicant’s employer and they have never been in an employment relationship. He states that when the applicant returned from her maternity leave in August 2009, she was an employee of Just Energy. Mr. Bradstock briefly notes in his conclusion that he is released from any claim by the applicant by the fact that the applicant signed a release with Just Energy that would apply to him.

9Neither the applicant’s nor Mr. Bradstock’s submissions focus on the issue that they were asked to consider, namely whether the release signed by the applicant with Just Energy would also release Mr. Bradstock who, at the time, appears to have been in some sort of contractual relationship with Just Energy. Neither party has referred to whether Mr. Bradstock and/or his own corporate entity would be an “affiliate” or an “agent” of JEC that might be described in the release, which states, in part:

In consideration for the payment of severance and other benefits by Just Energy Corp (“JEC”) contained in the attached Separation Agreement you hereby agree to release JEC and any and all of the Company’s subsidiaries, parents, branches, divisions, affiliates, related entity and present and former officers, directors, employees, shareholders and agents (collectively “JEC Officials”) individually and in their official capacities, of and from all causes of action, claims, damages, judgements or agreements of any kind including but not limited to all matters arising out of your employment with JEC and the cessation thereof.”

10Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an Application without affording the parties an opportunity to make oral submissions. Accordingly, the Registrar will schedule a two-hour teleconference to consider whether the Application against Mr. Bradstock should be dismissed as a result of the release signed by the applicant dated October 1, 2009. The parties should be prepared to make submissions during the conference call as to how the release applies or does not apply to Mr. Bradstock.

11If either party wishes to rely on any additional written materials (including written submissions, documents or case law) or facts not already before the Tribunal, they must deliver such additional material to the other party and file it with the Registrar within 21 days of the date of this Interim Decision.

12A copy of this Interim Decision will be provided to Just Energy as it may have an interest in this matter. If Just Energy wishes to participate by means of written submissions or at the teleconference it must communicate this interest to the Tribunal and the parties within seven days of the date of this Interim Decision. Any written submissions or materials must be delivered to the parties and filed with the Registrar within 21 days of the date of this Interim Decision.

ORDER

13The Tribunal makes the following orders:

1. A two-hour teleconference call will be scheduled to hear the parties’ submissions on whether Mr. Bradstock is subject to the release the applicant signed with Just Energy Corp. on October 1, 2009.

2. A copy of this Interim Decision will be provided to Just Energy Corp. If Just Energy Corp. wishes to participate by means of written submissions or at the teleconference it must communicate this interest to the Tribunal and the parties within seven days of the date of this Interim Decision.

3. If the parties or Just Energy Corp. wish to rely on any written materials (including written submissions, documents or case law) or rely on any information not already filed with the Tribunal they must deliver it to the other parties and file it with the Tribunal within 21 days of the date of this Interim Decision.

14I am not seized.