HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marilyn Walkinshaw
Applicant
-and-
Complex Services Inc.
Respondent
decision
Adjudicator: Lorne Slotnick
Indexed as: Walkinshaw v. Complex Services Inc.
APPEARANCES
Marilyn Walkinshaw, Applicant ) Chris Bittle and ) Leanne Standryk, Counsel
Complex Services Inc., Respondent ) Lauri Reesor, Counsel
1This Application was filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint is dated August 25, 2005, and claims discrimination with respect to employment on the basis of disability. It is not disputed that the Applicant is a person with a disability, but the key issues are whether the Respondent knew or ought to have known about the disability and should have accommodated it before it terminated her employment, and, if not, whether the Respondent’s duty to accommodate the disability continued after the termination when the disability became known by the Respondent.
2In an interim decision dated November 22, 2010 (2010 HRTO 2318), I dismissed the Respondent’s preliminary argument that the Application be dismissed as an abuse of process because the applicant had signed a release. I reached the following conclusion (at paragraphs 48-49):
In nearly all cases where a settlement has been reached or a release had been signed, this Tribunal has ruled that it would constitute an abuse of the Tribunal’s process to proceed with a hearing. I certainly do not disagree with this approach. However, I have concluded that this is one of the rare and exceptional cases where the Tribunal cannot at this preliminary stage declare that proceeding would be an abuse of process despite the signing of a release. The employer was made aware almost immediately after the release was signed that the applicant had a disability and that the disability may have given rise to a requirement for accommodation and may have influenced the applicant’s actions in accepting the termination package without seeking advice. The employer chose not to respond at all to this information, and should not benefit at this stage from its decision to ignore the letter from the applicant’s psychiatrist. Furthermore, there is an argument the release itself may be of no effect because of the provisions of the Employment Standards Act, 2000, set out above. Finally, as noted above, there is not enough evidence yet on how much the supervisory staff at the respondent knew about the disability or ought to have known, whether inquiries ought to have been made, and whether the participants in the termination meeting should have been advised that there was a disability.
At this preliminary stage there are too many important unanswered questions to declare that this Application is an abuse of the Tribunal’s process. The Application deserves to be heard on its merits.
3The matter proceeded to a hearing on the merits on May 2, 2011, and written arguments were completed by August 31, 2011.
Background Facts
4The respondent provides staffing for Casino Niagara and Fallsview Casino Resort, both in Niagara Falls. Fallsview is a complex that includes a casino, hotel, theatre, shopping mall and convention centre. Both locations are owned by the Ontario government through the Ontario Lottery and Gaming Corporation. The respondent has several thousand employees. The applicant was an employee for just over 13 months until her termination on July 8, 2005.
5The applicant has a diagnosis of bipolar affective disorder with psychosis, and there is no dispute that she is a person with a disability within the meaning of the Code. She was first employed with the respondent in May 2004. Late in 2004, as a result of a reorganization, her job was changed substantially and she, along with two other employees, were transferred to the role of engineering dispatcher. At around the same time, she began treatment for her disability with Dr. Michael Porter, a St. Catharines psychiatrist. It is agreed that the applicant had difficulty performing her new duties, although the causes of that difficulty are in dispute and will be discussed below.
6The applicant was off work for about two months in early 2005, and then for about a week in early June 2005. Each time, Dr. Porter wrote a note to the respondent that did not specify the reasons for the absence. The respondent has a third-party insurance company that administers medical leaves, and Dr. Porter filled out the insurer’s forms, indicating the applicant’s illness and her medications. It is undisputed that the applicant did not make any formal request for accommodation upon her return to work from either absence, or at any other time before her termination.
7The applicant’s difficulties with work continued after her absences, and, after a negative performance evaluation in June 2005, the respondent decided to end her employment. The applicant was called to a meeting on Friday, July 8, 2005. Present were her manager, Jim Hyk; Frank Costabile, a human resources consultant; and Brian Mosher, the casinos’ executive director of facilities. They gave the applicant a letter stating the termination was for reasons of “fit and suitability.” The letter said the respondent would be giving her $1,018.14 pursuant to her entitlements under the Employment Standards Act, 2000, and was offering an additional $1,478.13 conditional upon signing a release. The letter continued, “We ask that you give this offer careful consideration, obtain whatever advice you deem appropriate, and advise us of your position by July 15, 2005.” In the Interim Decision cited above, I concluded that while numerous members of management knew that the applicant had been absent twice for medical reasons in the months preceding her termination, the three management representatives who conducted the termination meeting were not told directly any specific information about why the applicant was off work and could only, at best, speculate about the applicant’s medical issues.
8Despite the extra week she was given to consider the matter, the applicant signed the release immediately. The documents included a release of claims arising under or in connection with the Code.
9The following Monday, the applicant saw Dr. Porter and advised him she had been fired. He immediately wrote to Mr. Mosher (with a copy to Mr. Costabile) asking the respondent to reinstate the applicant. His letter, dated July 11, 2005, specifically states that the Applicant’s disability is Bipolar Affective Disorder, and requests the Respondent to either place her on medical leave or in a less stressful position.
10The respondent did not reply to this letter from Dr. Porter.
11In my earlier Interim Decision, I concluded that there was no duress involved in the termination meeting, nor was there evidence that the applicant lacked the legal capacity to sign the release. However, as noted above, a key question is whether the supervisors and managers involved in the Applicant’s termination knew or should have known that she was a person with a disability.
The respondent’s knowledge of the applicant’s disability PRIOR TO the termination
12As noted above, it is not in dispute that no one among the applicant’s supervisors or managers was told directly by anyone prior to the termination that she had a disability and needed accommodation. However, the applicant argues that the respondent knew or should have known that this was the case. The respondent argues that it had no knowledge, nor should it have known, of the disability and that the termination of employment was therefore solely for non-discriminatory reasons.
13The applicant relies mainly on an e-mail message in February 2005, just prior to her first medical leave, from Jennifer McDowell, an employee who was training the applicant in her new duties. The message, to a manager, raised concerns about the applicant’s ability to perform the job, including procedures for alarms. In the course of a fairly lengthy message, she states,
Her response to our last alarm, well, frankly alarmed me…she said that her instinct was to turn around and run out the door, and then she told me that she gets panic attacks that she is medicated for as well as taking meds for depression.
14The applicant argues that this message indicates at least one manager had, or should have had, knowledge of her medical condition and that the respondent should have made further inquiries about the disability. Furthermore, the applicant argues that her difficulties coping with her new position were directly related to the disability, a fact the respondent knew or should have known. The respondent’s failure or neglect to pursue the matter was designed to avoid potential costs associated with accommodation, the applicant asserts. The respondent disagrees, saying it had no knowledge of the disability until after the termination, too late to trigger any obligation to accommodate.
15I heard evidence on this issue from the applicant, as well as from Ms. McDowell, the sender of the e-mail message referred to above, and the recipient, Joe Ferro. In addition, one of the applicant’s supervisors, John Divers, gave relevant evidence.
16The applicant testified that she knew right away she was not qualified for her new position as an engineering dispatcher, which involved job duties that were unfamiliar to her, such as use of computers and monitoring of control panels. Further, she said, she found it hard to learn anything from Ms. McDowell, who she described as very impatient. In addition, she said, her medication made her very tired and the entire situation increased her anxiety.
17Asked whether she made any requests to management, the applicant replied that she asked only that someone else train her. She said she did not remember telling anyone at work, whether supervisors or co-workers, that she was affected by depression or bipolar disorder, and did not believe anyone knew about her disability. She said it was known among employees that a person who suffers from a disability that may require absences would be fired. She said she did not give Dr. Porter any details of her job duties and that he was not aware of how much training she was receiving. She also agreed that an engineering dispatcher’s inability to perform the job gave rise to legitimate safety concerns by the employer.
18Ms. McDowell, who wrote the e-mail message noted above on February 3, 2005, is no longer employed by the respondent. At the time, she was a senior dispatcher and was training the applicant but was not a supervisor. Ms. McDowell said she was aware of the applicant’s absences from work but did not know anything about the reasons. She said that while the applicant did tell her she was taking medication for depression – a comment that was mentioned in the e-mail message – no other details were ever disclosed by the applicant, nor did she ask the applicant to elaborate. The e-mail was sent because part of her duty as a trainer was to report on the trainees’ progress to Mr. Ferro, who at the time was an engineering shift manager. Ms. McDowell said she did not understand the applicant to be saying she had a disability since the term “depressed” is commonly used colloquially. Asked on cross-examination whether there is a difference between someone saying they are depressed and someone who says they are being medicated, she replied that she is not sure, and that lots of people say they are depressed or on medication.
19Mr. Ferro, the recipient of Ms. McDowell’s message mentioning depression and medication, no longer works for the respondent but at the time was the applicant’s direct manager. His evidence is that the applicant was entirely incompetent in her role as engineering dispatcher, given her lack of computer skills, failure to properly log calls, and in particular, he said, her inability to handle emergencies and operate the fire panel. He said he advised his superiors of his concerns, which he said posed safety risks to employees and patrons because engineering dispatchers play an important role in responding to emergencies involving elevators, refrigeration, environmental controls, fire alarms and evacuations. Mr. Ferro said he believed the applicant should be transferred elsewhere and began soliciting information from his supervisors and crew members about the applicant’s performance.
20Mr. Ferro confirmed he received the message from Ms. McDowell outlining various concerns, and mentioning depression, in February, 2005. Late in April 2005, after soliciting comments from several employees about the applicant’s progress, he received another long message from Ms. McDowell with specific examples of the applicant’s inability to perform her duties, as well as other messages from other employees echoing the same sentiments. None of these messages, which were received in evidence, referred to any medical issues or disability. Mr. Ferro’s evidence is that he had no knowledge that the applicant had been diagnosed with a disability. He said he was aware of her two absences in 2005, but was not aware of the reasons. In fact, he said, he recalled that the applicant had said she had slipped and hit her head shortly before her absence in February of that year, and assumed the absence was related to that incident. In the case of each of the absences, Mr. Ferro said he was advised that the applicant was returning to work with no restrictions or accommodations. While Ms. McDowell’s first message mentioned medications, Mr. Ferro said he did not attach any particular significance to that, since he did not know what the medication was for. He said his discussions with Mr. Hyk and other superiors about the applicant were about her performance of the job, not about medical issues. He said he did not mention medication at all when discussing the matter. Mr. Ferro also said he was not even aware in July 2005, that the applicant’s employment had been terminated, thinking instead that she may have been transferred elsewhere.
21On cross-examination, Mr. Ferro said that despite the applicant’s problems with work, he did not suspect a disability. After her absences, he said, the applicant “seemed to be OK, but she still couldn’t do the job.” Mr. Ferro testified that his biggest concern was the fire panel, since people’s lives were potentially on the line. Asked whether he should have known that the applicant had a medical issue, Mr. Ferro replied, “I’m not trained to connect the dots on medical issues, I’m trained to connect the dots on heating and air conditioning.”
22Mr. Divers, an engineering supervisor, said that among the problems noted in the applicant’s work were inaccurate data entry and record keeping, incorrect provision of information to maintenance staff being dispatched, inability to perform the most basic computer functions, and inability to handle emergency protocols, including the fire panel. Mr. Divers said he came to regard the applicant as simply not trainable, but said there was no indication of any link to a medical condition. He added he was aware she was absent from work for several weeks early in 2005 and for a week in June, but was unaware of the reasons. Mr. Divers was asked about an e-mail message he sent to Mr. Ferro on May 18, 2005, not long before the applicant’s performance appraisal. In the message, he praises the applicant for being pleasant and personable, but says the major duties in her position seem “beyond her grasp” and that “we may be at a dead end with Marilyn.” He added that “at times she seems distant and actually unaware of what is going on around her. There may be other issues at work here, but I have no idea what they may be.” Asked whether this meant that he suspected a disability, he responded that the message was written a long time ago, but that he may have been alluding to a possible drug or alcohol issue. He said he would have reported a disability to his superiors if he had evidence of one, but that he did not suspect a disability since there were no restrictions on her work.
23Also relevant to this issue is the return-to-work assessment completed by Dr. Porter in April 2005, at the end of the applicant’s two-month absence. Dr. Porter wrote “none” when asked for the patient’s restrictions. The form asked whether there were any cognitive limitations, or difficulties with problem solving or decision making, but those were left blank. In his evidence at the hearing on the preliminary motion, which the parties agreed could be considered in deciding the merits, Dr. Porter agreed that she was fit to return to work and was working at the time of her termination.
24There was much evidence from several witnesses about the training given to the applicant. It need not be detailed here. However, despite the applicant’s expressed misgivings about the training, I am satisfied that the respondent devoted time and effort to the applicant’s training far beyond what it expected would be necessary, and beyond what was given to the other two employees transferred at the same time as the applicant into the engineering dispatch role, who apparently adapted well to their new role. In e-mail messages, Ms. McDowell expresses frustration and appears to blame herself as much as the applicant for her inability to get through, suggesting that possibly another trainer help out. This was arranged, but appeared to make no difference, as the new trainer soon was sending messages to Mr. Ferro with the same concerns expressed by Ms. McDowell and the others.
25There was also evidence that some of the respondent’s managers considered transferring the applicant to a different position where she might be more successful, but concluded there were no available jobs for which she was qualified. The evidence of Frank Costabile, at the time a human resources consultant for the respondent, was that before the termination he checked whether the applicant had any record of a medical condition or other disability in accordance with the respondent’s standard procedure, and was advised that there was nothing on record that was necessary to consider prior to the termination.
26Section 5(1) of the Code states that “every person has a right to equal treatment with respect to employment without discrimination because of … disability.” At the time of her termination, it is not disputed that the applicant was a person with a disability. If the respondent knew or ought to have known about the disability, it had an obligation under the Code (s. 17) to accommodate the applicant to the point of undue hardship, failing which the termination of her employment would violate the Code.
27In my view, the evidence strongly suggests that the applicant’s acknowledged inability to perform the duties of her job was aggravated by her disability and the medications she was taking for it, but was not solely caused by her medical condition. Because of a reorganization, the applicant was transferred to a job that was not of her choosing, and it was a job that was simply a poor match for her skills, regardless of the disability.
28However, after reviewing all the evidence, I cannot reach the conclusion in the circumstances that the respondent knew or reasonably ought to have known that the applicant had a disability requiring accommodation at the time her employment with the respondent was terminated. The applicant had been transferred from a job where she was performing well to a job that appeared to overwhelm her. To her managers and supervisors, it appeared that she was simply not qualified for the new position, despite extensive training. Even though she was off for two periods before her termination, she was returned to work with no restrictions and no request for accommodation.
29Certainly there was a small amount of casual speculation among the staff and supervisors about what issues might be causing the applicant’s inability to learn the new job, but I accept the respondent’s evidence that its employees and managers did not have a clear idea that the applicant had a disability that affected her work. Even though the applicant in her evidence did not appear to remember the conversation, the email from Ms. McDowell to Mr. Ferro indicates that the applicant told Ms. McDowell, a co-worker, that she was being medicated for depression and panic attacks. Given that even the applicant does not remember the comment, I find that it was likely a remark made in passing and not intended as any kind of request for accommodation. Ms. McDowell mentioned this comment in a message to Mr. Ferro that covered a large number of issues with the applicant’s performance. There is no indication that Mr. Ferro passed this information on to Mr. Hyk or any of the other managers involved in the decision to terminate the applicant’s employment.
30In my view, to impute knowledge of a disability to Mr. Ferro in these circumstances simply places too heavy a burden on a person who should not be expected to indulge in speculation on whether an employee has a disability, what that disability might be, and what accommodations might be necessary. Such speculation or inquiries would at best be semi-informed, and might well be resented by an employee who is receiving medical attention but working with no restrictions. Mr. Ferro’s statement that he is “not trained to connect the dots on medical issues, I’m trained to connect the dots on heating and air conditioning,” is a blunt but honest assessment of his situation. In the absence of any request for accommodation from the applicant, and in the absence of any obvious behaviour that would suggest a disability, Mr. Ferro did not venture any opinions on possible medical issues and instead focused on the problems presented by the applicant’s inability to do the job. I find nothing improper in this.
31The applicant argues that Mr. Ferro had an obligation to request further information from the applicant. While I can agree that this was a possible course of action, I cannot agree that it was an obligation, particularly given that she had been returned to work with no restrictions. Similarly, while Mr. Ferro or Ms. McDowell could have raised the possibility of a disability with the respondent’s human resources department, my conclusion is that, given the information they had, they had no obligation to do so and should not have been expected to do so. I find some lack of sincerity in Ms. McDowell’s comment that she believed the applicant was using the word “depression” in its colloquial sense; however, I cannot agree with applicant counsel that the applicant was “reaching out” to a co-worker asking for accommodation, particularly when, shortly afterward, she was absent on sick leave and returned with no restrictions or request for accommodation. Furthermore, it is clear on the evidence from all witnesses that the applicant’s behaviour and her struggles with her job duties did not noticeably change throughout her time in the job.
32In that respect, this case differs from some of those referred to by the applicant, including Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, where the complainant told a manager directly that he had a bipolar disorder diagnosis; and Alladice v. Honda of Canada, 2010 HRTO 1453, where supervisory staff observed a marked change in the applicant’s behaviour.
33My conclusion, therefore, is that the applicant was terminated from her employment without knowledge by the respondent of her disability, for reasons solely related to her performance issues. At most, there might have been a suspicion that medical issues were affecting her performance, but in circumstances where she had been returned to work after two absences with no restrictions, I find the facts insufficient to impute knowledge to the respondent or to impose an obligation to inquire further or to grant accommodations that had not been requested. Given my finding that the respondent neither knew of the disability, nor ought to have known about the disability, I cannot find that the disability or suspected disability was a factor in the termination of the applicant’s employment. Therefore, there was no violation of the Code in the termination of employment and there was no obligation to accommodate her disability that arose prior to the termination.
Did the duty to accommodate survive after the termination?
34While I have found that the respondent was not aware of the applicant’s disability at the time of the applicant’s employment was terminated, it is clear that it knew shortly afterward, because of Dr. Porter’s letter dated the business day after the termination. The letter specifically states that the applicant has the disability of bipolar disorder, and requests accommodation. Witnesses for the respondent acknowledged receiving the letter, but said they had no obligation to respond because the applicant’s employment had already been terminated and she had signed a release. This document, among other standard terms, releases the respondent from
“all claims arising out of or in any way related to the termination or cessation of such employment, including … claims arising under or in connection with … the Ontario Human Rights Code, R.S.O. 1990 c. H.19, as amended, or claims for mental or physical disability or sickness or for insurance benefits and including all loss or damage not now known or anticipated but which may arise in the future, and all effects and consequences thereof.”
The applicant argues that under the Code the respondent’s duty to accommodate her disability continued even after the termination. In particular, the applicant argues that the duty to accommodate continued for the two-week period of notice required under the Employment Standards Act, and through any period of common-law notice to which she was entitled. Given that Dr. Porter requested accommodation almost immediately after the termination, that request would clearly have been made and received within the applicable notice period. Had the respondent complied with the request for accommodation, the applicant argues that she could either have been placed in a less stressful job or else been put on short-term disability benefits. Applicant counsel submits that if she had been placed on short-term disability benefits, she would have later moved to long-term disability benefits for the duration of her disability or to age 65 under the insured plan. (The applicant was 41 at the time of termination.)
35In support of these arguments, the applicant has referred to two wrongful dismissal judgments made by Ontario courts. In Egan v. Alcatel Canada Inc., 2006 CanLII 108 (ON CA), [2006] O.J. No. 34, the Ontario Court of Appeal was dealing with an employee who became disabled after termination but within the common-law notice period after her dismissal. The Court said, at paragraph 26, that “where an employee would otherwise have qualified for disability benefits during the reasonable notice period, but the application is denied on the basis that coverage was wrongfully discontinued by the employer, the employer must be liable for the value of the disability benefits that would otherwise have been payable.” In that case, the employee was disabled for a year, and the transition from short-term to long-term benefits was also within the common-law notice period. In Brito v. Canac Kitchens div. of Kohler Canada Co., 2011 ONSC 1011, [2011] O.J. No. 1117, the Ontario Superior Court took the same approach, ordering the employer to pay the present value of long-term disability benefits to age 65. The applicant argues that the case here is similar, given that six years after her termination she is still not working, and given that the evidence indicates she is unlikely to ever work again. The evidence is that the applicant is still under Dr. Porter’s care for a severe disability and has qualified for Canada Pension Plan disability benefits.
36I agree it appears likely that the applicant will not return to the work force, at least in the near future. However, in assessing whether the respondent was obliged to consider her post-termination request for accommodation, it is important to consider the effect of the release. If the validity of the release is upheld, then the applicant is barred from making any claim for accommodation or disability benefits after the termination, notwithstanding any argument that the duty to accommodate can post-date the termination.
37In my Interim Decision on this matter, I expressed concern that the release excluded short-term and long-term disability benefits for the statutory notice period. These disability plans are insured policies for which the respondent pays the premiums. As an employee with more than one year but less than three years of service, the applicant was entitled to two weeks’ notice or pay in lieu thereof under the Employment Standards Act. However, the Act also requires the employer to maintain benefits during the notice period, by virtue of ss.60 and 61:
60.(1) During a notice period under section 57 or 58, the employer,
(c) shall continue to make whatever benefit plan contributions would be required to be made in order to maintain the employee’s benefits under the plan until the end of the notice period.
61.(1) An employer may terminate the employment of an employee without notice or with less notice than is required under section 57 or 58 if the employer,
(a) pays to the employee termination pay in a lump sum equal to the amount the employee would have been entitled to receive under section 60 had notice been given in accordance with that section; and
(b) continues to make whatever benefit plan contributions would be required to be made in order to maintain the benefits to which the employee would have been entitled had he or she continued to be employed during the period of notice that he or she would otherwise have been entitled to receive.
38The applicant argues that the failure to continue benefits for the statutory notice period is a violation of the Employment Standards Act and renders the release void and unenforceable.
39The respondent disagrees. Aside from raising the question of whether the applicant was even qualified for sick benefits during any notice period – a live issue, given that the applicant was working at the time of her termination and that one of her doctor’s requests was that she be kept working, albeit in a less stressful job – the respondent argues that any potential violation of the Employment Standards Act is beyond the jurisdiction of this Tribunal. Even if there is an issue as to its compliance with the Act, the release is valid to bar any human rights claims, the respondent argues.
40In support of this argument, the respondent cites a number of decisions in which the Tribunal has said it has no jurisdiction to remedy breaches of employment standards legislation or the common law unless the breach is tied to an act of discrimination that violates the Code. The cases include Kennedy v. Appliance Canada, 2010 HRTO 384, Garrelhas v. ICI Consultants Inc., 2006 HRTO 6, and Li v. Novopharm, 2009 HRTO 885, all of which deal with alleged violations of employment standards legislation.
41I agree with the respondent and the principles articulated in the cases cited above. As I suggested in my Interim Decision, it may be that the release does not comply with the requirements of the Employment Standards Act. But in the absence of discriminatory conduct, that is an issue beyond the jurisdiction of this Tribunal.
42I have already found that the termination of the applicant did not involve discrimination because the respondent did not know nor ought to have known of her disability. I have also found in my earlier Interim Decision that no duress was involved in the termination meeting and that the applicant had the legal capacity to execute the release. The release clearly bars human rights claims and claims for disability benefits. Furthermore, I disagree with the applicant’s assertion that the terms of the release are somehow unconscionable; even if I were to agree, this is again a matter beyond this Tribunal’s jurisdiction in the absence of discrimination. I therefore find that the signing of the release in this case determines the question of whether the applicant had any right to accommodation of her disability after the termination. The signing of the release signified that the employment relationship was over. With the relationship at an end, there was no requirement after that point to accommodate the applicant’s disability. While the respondent’s failure to respond to Dr. Porter’s letter requesting accommodation may have been discourteous, it cannot be a violation of the Code, as the respondent had no obligation to reply once the release was signed.
43The applicant has also argued that the release cannot have settled the human rights claim since neither party acknowledged that there was, in fact, a human rights issue. In the absence of an acknowledgement of the claim, the parties have effectively “contracted out” of the Code, applicant argues. The applicant cites the following passage from the Ontario Human Rights Commission’s “2006 Guide to Releases with Respect to Human Rights Complaints”. This guide states (on page 4) that
The distinction between “contracting out,” which is prohibited, and settling a complaint, which is permitted, may appear complex at first. However, the difference can usually be determined by the answer to one straightforward question. Did both the employer and employee know of the existence of a human rights complaint, or if not a formal complaint at least of the existence of a human rights concern or issue, prior to the release being signed? If there was no knowledge at all of the presence of a human rights issue between the parties it cannot be said that a human rights complaint was settled. One cannot settle an issue of which one is not even aware.
44This publication is not on the Commission website and it is not clear whether it is still Commission policy. In any event, Commission policies do not have the force of law, and in my view, the statement above conflicts with the Tribunal’s general approach of upholding release of human rights claims even where the human rights issue has not been explicitly acknowledged or understood by the parties at the time of the release being signed. (See, for example, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655.) In this case, the applicant signed a release clearly covering human rights claims in circumstances where she failed to disclose the existence of a human rights concern and where, as I have found, the employer was unaware of a disability. In my view, these circumstances do not warrant overturning the agreement of the parties as set out in the release.
45Finally, another argument was raised in the applicant’s final submissions, which deserves some comment. It is agreed that the release signed by the applicant, which excludes short-term and long-term disability insurance, is the standard release used by this respondent. The applicant argues that a rule imposed by the respondent excluding all terminated employees from disability benefits constitutes constructive discrimination against disabled people contrary to the s.11 of the Code. As the applicant points out, discrimination under the Code can occur when everyone is treated the same but the effect is to deny the right to equal treatment to people with personal characteristics protected by the Code (see for example McDonald v. Mid-Huron Roofing, 2009 HRTO 1306). The respondent’s submissions do not address this argument. In my view, while this is an arguable point, it is beyond the scope of this Application. The underlying complaint filed with the Ontario Human Rights Commission does not raise any suggestion that the release itself violates the Code, and this Tribunal has consistently ruled in applications under s. 53(3) of the Code that it will not hear matters that are not part of the subject matter of the underlying complaint (see, for example, Tyrrell v. Intercall Canada, 2009 HRTO 228).
SUMMARY OF FINDINGS
46In summary, then, I have concluded that the respondent did not know, nor should it have known, about the applicant’s disability at the time of the termination. The applicant’s termination was because of her acknowledged inability to perform her job and her disability was not a factor in the termination. The termination was therefore not discriminatory. The applicant signed a release of any human rights or disability benefits claims on the day of her termination. Even though the respondent was advised shortly afterwards of the disability and of the request for accommodation, it had no obligation to comply with the request because the release had been signed.
47For the reasons above, the application is dismissed.
Dated at Toronto, this 1st day of November, 2011.
“Signed by”
Lorne Slotnick
Member