HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lakhvinder Kaur Sidhu
Applicant
-and-
Smarte Carte Canada Ltd.
Respondent
INTERIM DECISION
Adjudicator: Sheri D. Price
Indexed as: Sidhu v. Smarte Carte Canada
1This Interim Decision deals with the respondent employer’s Request for an Order during Proceedings to strike out those allegations in the Application which occurred prior to and on December 23, 2009 (“the Request”).
BACKGROUND
2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on July 22, 2010, alleging that the respondent discriminated against her with respect to employment on the basis of race, creed and sex. The applicant also alleges that the respondent engaged in reprisals against her contrary to s.8 of the Code. The allegations in the Application may be summarized as follows:
- At some time before December 2007, the applicant was allegedly “harassed and threatened” because she reported a male employee for attempting to obtain funds improperly. The applicant contends that “nothing was done” to protect her from such harassment and threats or to investigate her allegations.
- In December 2007, the respondent allegedly gave the applicant a disciplinary letter with respect to some missing funds and threatened that the applicant would lose her job if she challenged the letter. The applicant subsequently retained a lawyer and negotiated a settlement agreement with the respondent pursuant to which the disciplinary letter was removed from her file, among other things.
- In January 2009, the respondent allegedly refused to give the applicant a cash bonus which it gave to male employees performing the same job as the applicant on the stated basis that the applicant was a woman and her job was different.
- On or about December 23, 2009, the respondent allegedly refused to teach the applicant a new collection procedure which was being taught to her male counterparts. The applicant alleges that she was told that the disparity between her salary and that of the male employees was because the applicant was a woman and her job was different.
- The respondent terminated the applicant’s employment on February 6, 2010, citing economic reasons. The applicant alleges that her employment was terminated as a reprisal because she challenged the disciplinary letter the respondent gave her in December 2007 and was the “last step” in the respondent’s pattern of discrimination and intimidation against her.
RESPONDENT’S REQUEST
Delay
3The respondent seeks to have all of the allegations in the Application which occurred prior to December 23, 2009 dismissed on the basis of delay pursuant to s. 34 of the Code. Section 34 of the Code provides that a person may file an application alleging that her rights under the Code have been infringed within one year of the last incident, or the last in the series of incidents, to which the application relates. A person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay.
Abuse of Process
4The respondent also submits that the Tribunal ought to dismiss the allegations relating to what allegedly occurred in December 2007 on the basis that it would constitute an abuse of the Tribunal’s process to permit the applicant to pursue them. In this regard, the respondent contends that the applicant and the respondent entered into a Settlement Agreement and General Release in respect of the December 2007 events referred to in the Application, pursuant to which the applicant “irrevocably and unconditionally” released the respondent from any claims arising out of the “employment dispute” of December 2007. Numerous decisions of the Tribunal have held that filing a human rights application after signing a full and final release in respect of the subject-matter of the application may constitute an abuse of the Tribunal’s process and, where that is the case, such applications should be dismissed. See, for example, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655; Luo v. Dell Canada, 2010 HRTO 879.)
Estoppel
5In its Request, the respondent also contends that the applicant is “estopped” from asserting in her Application that the respondent discriminated against her in December 2009 because she failed to alert the respondent’s Human Resources director that she believed herself to have been subjected to discriminatory actions in December 2009, as contemplated by the February 2008 Settlement Agreement and General Release between the parties.
APPLICANT’S REPLY
6In her Reply to the respondent’s Request, the applicant states that all of the allegations which occurred prior to December 23, 2009 were included in her Application only to “bring these facts to attention” and to “set the context for the decision to fire her” in February 2010. In other words, it appears that the applicant is not seeking to put the incidents which predate December 2009 forward as alleged incidents of discrimination in respect of which she seeks a remedy under the Code.
DECISION
Allegations prior to December 2009
7In light of the applicant’s Reply, it seems to me that it is not necessary to determine the respondent’s Request that the allegations prior to December 2009 be struck from the Application. In my view, given that the incidents which allegedly occurred prior to December 2009 are not put forward by the applicant as incidents of alleged discrimination upon which the Application is based and in respect of which the applicant seeks a remedy, then the extent to which the applicant may refer to them at the hearing of this matter to establish that the respondent infringed her rights under the Code in December 2009 and afterwards is an evidentiary matter best left to the hearing adjudicator.
Allegations in December 2009
8As for the respondent’s submission that the applicant is estopped from pursuing her December 2009 allegations, I am not persuaded that the applicant could be estopped from pursuing a claim that her rights under the Code were violated in December 2009 based on a representation she allegedly made in the February 2008 Settlement Agreement. It is well-established that although a person may agree not to proceed with a human rights claim based on past events, she cannot contractually agree to put herself beyond the reach of the Code’s protection in future: Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (S.C.C.), [1982] 2 S.C.R. 145 at 158; and that any contract which purports to have this effect is void as contrary to public policy: Ontario Human Rights Commission v. Etobicoke (City), [1983] 1 S.C.R. 202 at 213-214. See also Perricone, supra, at para. 73-74. Accordingly, the respondent’s Request that the December 2009 allegations be dismissed on the basis of estoppel is denied.
9I am not seized.
Dated at Toronto, this 9^th^ day of August 2011.
”signed by”____________
Sheri D. Price
Vice-chair