Bonnie Margaret Smith v. Children’s Village of Ottawa-Carleton, 2011 HRTO 2216

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bonnie Margaret Smith

Applicant

-and-

Children’s Village of Ottawa-Carleton

Respondent

DECISION

Adjudicator: Alan G. Smith

Date: December 8, 2011

Citation: 2011 HRTO 2216

Indexed as: Smith v. Children’s Village of Ottawa-Carleton

APPEARANCES

Bonnie Margaret Smith, Applicant ) Self-represented

Children’s Village of Ottawa-Carleton ) Respondent ) John Westdall, Counsel

BACKGROUND

1This is an Application filed on January 19, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination based on family status, which culminated in her termination by the employer respondent.

2In a Response dated March 7, 2011, the respondent requested early dismissal of the Application, relying on the terms of a Full and Final Release executed by the parties on March 3, 2010.

2The applicant filed written submissions on April 26, 2011, in response to the respondent’s request for dismissal. The respondent filed further written submissions on October 12, 2011.

3Pursuant to s. 43(2) of the Code and Rule 19A of the Tribunal’s Rules of Procedure a summary hearing by teleconference was held before me on November 22, 2011. Both parties participated and made oral submissions with regard to the request for dismissal.

4At the beginning of the hearing both parties agreed that I could consider all written submissions (including the Application, Response and Reply) as evidence properly before me. Both parties understood and agreed that the hearing would be confined to hearing submissions with regard to the respondent’s Request to Dismiss on the basis of the signed release document and would not consider or deal with the applicant’s contention that she was subject to discrimination contrary to the Code.

FACTS

5The applicant was employed by the respondent from September 5, 2006 to January 20, 2010. The applicant asserts in her Application that she was targeted for termination because of her family status.

6On March 3, 2010, after consulting with counsel, the applicant signed a document entitled “Full and Final Release” which had been provided to her with a letter from the respondent on February 9, 2010. A portion of that release document reads as follows:

…In consideration of the terms set out in the attached correspondence of February 9, 2010, the receipt and sufficiency of which is hereby acknowledged, Bonnie Smith…does hereby release and forever discharge Children’s Village of Ottawa-Carleton…from …claims arising under or in connection with the…Human Rights Code…

7As well, the release document contained a number of terms, one of which reads that “the Employee and the Company mutually agree that they will not say or disseminate anything disparaging of each other”.

ANALYSIS

8In her written submissions the applicant objected to the respondent’s Request to Dismiss on the following grounds:

I request that the full and final release signed by Bonnie Smith and Children’s Village of Ottawa be voided as Children’s Village of OC communicated discriminating remarks to their staff stating that Ms. Smith was unsuitable and unstable for the position of Program Supervisor. These comments breached the agreement as outlined in the release document signed March 3, 2010…

…Furthermore, these disparaging comments have leaked to the child care community in Ottawa, which is extremely small and close knit….

…Additionally, although Children’s Village provided me with a reference letter upon being dismissed (stating that I was laid off due to restructuring), the child care community is also aware that Children’s Village have continued to hire daycare personnel, even though I was laid off. This action along with disparaging remarks has severely damaged my professional reputation.

9In both its written and oral submissions the respondent denies violating the “non-disparagement” term of the release agreement and further argues that even if the term was breached it was not “fundamental” to the agreement and therefore would not justify setting aside or voiding of the agreement as a whole.

10During the course of the hearing the applicant conceded the fact that any comments made by the respondent to its staff with regard to the applicant were made prior to the signing of the release. I therefore find that the “non-disparagement” term of the release was not violated by any comments made by the respondent.

11The applicant’s further argument that the “non-disparagement” term was violated by the fact that the employer continued to hire daycare personnel after the applicant’s termination, also cannot succeed. The release document prohibits the parties from “saying or disseminating” anything disparaging of the other party. The respondent submitted that “saying or disseminating” necessitates some form of “publishing” disparaging comments or material to a third party. I agree. The respondent’s actions in continuing to hire daycare staff after January 20, 2011 cannot in any rational way be construed as “saying or disseminating” anything disparaging of the applicant.

12In sum, the applicant provided no submissions substantiating her claim that the “non-disparagement” term of the release document was violated by the respondent. I therefore find it unnecessary to address the respondent’s argument that the “non-disparagement” term was not fundamental to the release agreement.

13The terms of the Release clearly encompass an application made under the Code. However, accepting that the release expressly encompassed legal action related to human rights does not end the enquiry. In Bielman v. Casino Niagara, 2009 HRTO 123, the Tribunal stated:

The Code does not explicitly bar applications such as this where a release has been signed by the applicant. In each case where a respondent requests early dismissal of an application, the Tribunal must decide whether, in the circumstances, it would constitute an abuse of the Tribunal’s process to allow the application to proceed to a hearing on the merits. An important consideration in that analysis is the respondent’s reasonable expectation that a release of this kind will bring finality to any employment related dispute they may have with a former employee.

14Thus, while the existence of a full and final release is not a statutory bar to continuing an application, there are many reasons to uphold agreements reached between freely contracting parties. Failure to uphold such agreements, and to hold parties to their commitments, can undermine the integrity of negotiated settlements and hinder the timely and informal resolution of disputes, see Martinez v. Siemans Canada, 2010 HRTO 1027.

15Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

16The Tribunal has 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: Dube v. Rockhaven Recovery, 2009 HRTO 53; Sinnett v. Orlick Industries, 2009 HRTO 916, Kailani v. Securitas Canada, 2009 HRTO 1183, Martel v. North Shore Community Support Services, 2010 HRTO 957, and Dias v. Baycrest Centre for Geriatric Care, 2011 HRTO 1342.

17In the present case, having regard to the clear terms of the release, I find it would be an abuse of the Tribunal’s process to permit the Application to proceed.

ORDER

18The Application is dismissed.