HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Raquel Sutherland
Applicant
-and-
Jamie Bradstock
Respondent
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Sutherland v. Bradstock
APPEARANCES BY
Raquel Sutherland, Applicant ) Self-represented
Jamie Bradstock, Respondent ) Brian Kelly, Counsel
1This Application, filed under section 34 the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination in employment on the basis of sex. The applicant further alleges she was the subject of reprisal for claiming and enforcing her rights under the Code. This Interim Decision addresses the respondent’s request that the Application be dismissed on the basis that the applicant signed a full and final release that releases the respondent from any claims under the Code. This Interim decision also addresses a further issue raised by the respondent that the applicant and the respondent do not have a relationship with respect to employment pursuant to the Code.
2The Application originally named three respondents, Jamie Bradstock, Just Energy Corp. (“Just Energy”), and Daniel Camirand. In an Interim Decision dated January 25, 2010, 2010 HRTO 151, the Tribunal made three determinations. It accepted the applicant’s Request to Withdraw her Application against Just Energy on the basis that she had signed a full and final release with Just Energy. It granted Mr. Camirand’s request that the Application against him be deferred pending the outcome of another proceeding. It also directed the applicant and Mr. Bradstock to provide submissions in response to a request by Mr. Bradstock that the Application be dismissed against him on the basis that he was an agent of Just Energy and, accordingly, was also protected by the provisions of the release signed by the applicant. Both the applicant and Mr. Bradstock provided written submissions, as requested.
3In an Interim Decision dated March 10, 2010, 2010 HRTO 525 (Can LII), the Tribunal accepted the applicant’s Request to Withdraw her Application against Mr. Camirand on the basis that they had settled their dispute and she had signed a release releasing Mr. Camirand from further legal actions as part of this settlement. The Tribunal also decided to schedule a two-hour teleconference to consider whether Mr. Bradstock, the present respondent, was covered by the provisions of the release signed by the applicant with Just Energy on October 1, 2009. The parties and Just Energy were invited to provide further written submissions on whether the respondent was subject to this release. The respondent and the applicant have provided such submissions. Just Energy did not file any submissions.
4The hearing was held by teleconference on November 29, 2010. The applicant and the respondent participated. Just Energy was invited to participate but did not. For the purposes of making my decision, I have considered the information provided by the parties at the hearing, their oral and written submissions, and documents previously filed by the parties, Mr. Camirand and Just Energy as part of the applicant’s original Application.
BACKGROUND
5The applicant was initially an employee of CAM Energy Marketing Limited (“CAM Energy”), a company owned and operated by Mr. Camirand. CAM Energy was an independent contractor that had a contract with Just Energy to serve as its regional distributor, operating out of an office in Kitchener, Ontario. Just Energy is a company that sells natural gas and electricity to commercial and residential customers.
6It appears the applicant had several jobs with CAM Energy, eventually becoming a recruiter with responsibilities for recruiting sales persons to sell Just Energy products and services door-to-door in the Kitchener region. In May 2008, the applicant became an employee of Just Energy although her job function did not change. The applicant was paid by Just Energy and reported to a manager at Just Energy’s head office.
7The respondent was a manager for CAM Energy. According to the respondent, he left CAM Energy to become an independent contractor, and in May 2008, he replaced CAM Energy as the regional distributor for Just Energy in Kitchener, Ontario. Mr. Bradstock’s central contention is that, as the regional distributor for Just Energy, he operated as an agent of Just Energy and, as such, is covered by the terms of the release the applicant signed with Just Energy.
8The applicant went on maternity leave in August 2008. The Application’s allegations centre on how the applicant was treated when she returned to work in August 2009 following her maternity leave. The Application alleges that upon her return to work, the applicant communicated that she was again pregnant (approximately five months into a high risk pregnancy) and that she intended to take a further maternity leave.
9The applicant alleges that after she returned in August 2009, she was verbally harassed and treated in a dismissive and discriminatory manner by the respondent. The Application identifies the respondent as the applicant’s “boss”. The Application indicates that the applicant contacted Just Energy’s human resources department on several occasions to complain about the respondent’s actions and was told that there would be an investigation. The Application states that the applicant again raised the issue of harassment and the lack of an investigation at the meeting in which her employment was terminated by representatives from Just Energy’s head office on October 1, 2009.
10The applicant makes a number of allegations regarding Mr. Camirand, her former employer. However, these allegations are no longer an issue given that the applicant has withdrawn her Application against Mr. Camirand.
11On October 26, 2009 the applicant signed a release with Just Energy (effective October 1, 2009). It states, in part:
In consideration for the payments 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 actions, 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. This release includes, but is not limited to, any and all alleged claims, under common law, public policy, contracts (whether oral or written, expressed or implied) or tort law, regulation or ordinance having any bearing on the terms and conditions thereof including the Employment Standards Act and the Ontario Human Rights Code…
By signing this General Release you are providing a complete waiver of all claims that may have arisen, whether known or unknown, up until time that this General Release is executed…
Acknowledgement
I agree to the terms and conditions specified in the attached Separation Agreement and General Release and I intend to waive and release all claims that I may have against JEC, or the Companies, as applicable, and any JEC officials. I understand this waiver and release creates a total and unlimited release of all claims, whether known or unknown that I may have against JEC and the Companies as applicable, and JEC officials existing as of this date.
I have had ample time to review this agreement and to consider my general release of all claims as set forth in this General Release. I am signing this General Release knowingly, voluntarily, and with full understanding of its terms and effects.
I acknowledge that I have not relied on any representations or statements not set forth herein.
The Respondent’s Position
12The respondent submits that he was an agent of Just Energy, and as such is covered by the provisions of the release, which explicitly states that it applies to agents of Just Energy. The respondent does not claim to be covered by the release on any other basis. The respondent relies, in part, on a legal definition of agency as well as a letter from Just Energy that refers to the respondent as being an “independent agent of Just Energy”. The respondent submits that some of the indices of his relationship with Just Energy include the fact that he worked exclusively for Just Energy in the industry, that he was paid straight commission by Just Energy with no opportunity for further profit or loss, that he made no investment in the business, and that Just Energy set all of the terms, conditions and rates for the contracts he sold. The respondent submits that under the appropriate legal test for determining the nature of the employment relationship between the respondent and Just Energy, the respondent is, at a minimum, an agent, and could be construed to be a dependent contractor, tantamount to an employee of Just Energy.
13The respondent further submits that he is a third party who can rely on the provisions of the release between Just Energy and the applicant. Finally, the respondent argues that he and the applicant did not have an employer-employee relationship or a contractual relationship, and consequently the Application cannot proceed under the Code.
The Applicant’s Position
14The applicant states that she does not believe the respondent is covered by the release. She states that at the time she signed the release, she was told by Just Energy that the release did not apply to Mr. Camirand or Mr. Bradstock. She states that Just Energy could have explicitly referred to the respondent in its release and did not, and that, since the execution of the release Just Energy could have communicated to the Tribunal that the respondent was covered by the provisions of the release but it has not. She submits that the respondent was never referred to as Just Energy’s agent but rather as an independent contractor: a term not used in the release. She notes that the respondent was unaware of her settlement with Just Energy, including the release until after the fact.
15The applicant contends that Mr. Bradstock was, in effect, one of her employers and is not subject to the release she signed with her other employer, Just Energy. She states that Mr. Bradstock was an independent contractor, a separate legal entity from Just Energy, and that he was her employer given that he was active in directing her work during the period of August to October 2009. She states that, while Just Energy paid her salary, the respondent was in a position to pay her weekly bonuses, although it appears he did not do so in the period of August to October 2009.
DECISION
16The respondent’s request that the Application be dismissed is denied. I am not satisfied that the release establishes that Just Energy’s intentions were to extend the benefits of the release to the respondent as a third party. I find that Just Energy did not intend for the release to cover the actions of the respondent that are the subject of the applicant’s allegations against him. I find it significant that there is no information before me to suggest that Just Energy intended the respondent, as a third party, to be covered by the provisions of the release. Notably, it appears that a separate release was executed in respect of the applicant’s settlement with Mr. Camirand. I further find that the respondent and applicant have a relationship with respect to employment pursuant to the Code.
ANALYSIS
17I begin by considering whether the respondent was an agent of Just Energy’s. If not, he would clearly not be covered by the provisions of the release.
18The respondent submits that he was an agent relying on the definition of agent in Black’s Law Dictionary, which defines an agent as “a person authorized by another to act for him one entrusted with another’s business, … One authorized to transact all business of principal or all of principal’s business of some particular kind, or all business of some particular place.”
19Another definition of agency, that is often quoted, is from Professor G.H.L Fridman’s text, “The Law of Agency” (seventh edition, 1996), which states:
Agency is the relationship that exists between two persons when one, called the agent, is considered in law to represent the other, called the principal, in such a way as to be able to affect the principal’s legal position in respect of strangers to the relationship by the making of contracts or the disposition of property. (p.11)
20I accept, in light of the above definitions, and the information provided by the respondent as to nature of his relationship with Just Energy, that the respondent is an agent of Just Energy who sells Just Energy products and services to residential and commercial customers in the Kitchener region.
21It is undisputed that the respondent was not a party to the settlement between the applicant and Just Energy, and he was not aware of the release at the time it was executed. However, the respondent argues that he is a third party that can rely on the provisions of the release. In support of this supposition, he relies on the following passage from the Tribunal’s decision in Barter v. Bata 2010 HRTO 325 at para. 41:
The applicant also argued that Ms. Bata is not a party to the settlement agreement, and therefore cannot seek to take advantage of its terms. However, on the basis of the authorities submitted by the respondents I am satisfied that a third party is entitled to rely on the provisions of a release or settlement for the purposes of barring a claim: see Marble (Litigation Guardian of) v. Saskatchewan, 2003 SKQB 282.
22I agree that a third party can rely on the provisions of a release. However, the authority relied in Barter v. Bata, namely Marble (Litigation Guardian of) v. Saskatchewan, clarifies the circumstances under which a third party can rely on the provisions of a release executed by other parties (paras. 38 and 42):
…The law, in most instances, does not permit a third party to enforce or rely on a provision in a contract made between other parties. However, this basic privity of contract doctrine has recently been modified and relaxed by the Supreme Court of Canada to create “principled exceptions” to conform to the intentions of the parties and commercial reality.
…The [Supreme Court of Canada] held [in Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., 1999 CanLII 654 (SCC), [1999] 3 S.C.R. 108], that as a general rule, the doctrine of privity provides that a contract cannot confer rights nor impose obligations on third parties. Accordingly, a third‑party beneficiary is precluded from relying on the terms of an insurance policy between the owner and the insurer. However, a principled exception is required in certain circumstances. It is dependent on the intention of the contracting parties. The intention of the parties is determined on the basis of two critical and cumulative factors:
The parties to the contract must intend to extend unconditionally the benefit in the contract to the third party that relies on it;
The activities performed by the third party must be the ones contemplated and intended as coming within the scope of the benefit in the contract.
23The release states that it applies to Just Energy’s agents and, as an agent, the respondent can be considered as part of a class of beneficiaries named in the release. I also recognize the broad nature of the language used in releasing Just Energy and its agents. However, the evidence clearly establishes that it was not the intention of the applicant and Just Energy to unconditionally extend the benefit of the release to the respondent in terms of the respondent’s actions in relation to the applicant. Consequently, I find that the two factors required for the exception for third parties to the doctrine of privity, as set out in Fraser River, supra, has not been established.
24Given the need to ascertain the intentions of the applicant and Just Energy as to the scope of the release, it is necessary to understand the factual context in which Just Energy and the applicant arrived at a settlement and executed the release.
25The release was executed in October 2009, after the Application was filed naming Just Energy, Dan Camirand, and Jamie Bradstock as respondents. Mr. Bradstock was not involved as a party to the settlement discussions or the settlement involving Just Energy and the applicant. Following execution of the release, the applicant withdrew her application against only Just Energy but not as against the respondent or Mr. Camirand. There was no request from Just Energy or the applicant that the Application be withdrawn against the respondent on the basis that he was covered by the release. The applicant subsequently executed a separate release with respect to her claim against Mr. Camirand, and her Application as against him was withdrawn on that basis (and not because of the Just Energy release).
26The respondent has not provided any evidence, including obtaining evidence from Just Energy, with whom he states he has a close working relationship, to indicate that Just Energy considered the respondent covered as a third party under the terms of the release. In fact, although specifically asked by the Tribunal and afforded ample opportunity to respond, Just Energy has not disputed that the applicant was specifically advised that the release was not intended to cover the respondent, nor has Just Energy indicated that the release was intended to cover the respondent.
27The factual context and the evidence beyond the wording of the release supports a finding that the benefit of the release was not intended to extend unconditionally to the respondent and cover his actions in relation to the applicant.
EMPLOYMENT RELATIONSHIP
28The respondent submits that he was never the applicant’s employer and that he never entered into a contractual relationship with her. He submits that he never entered into an agreement for bonuses, pay, or any form of employment. He submits that the office in which the applicant worked was provided by Just Energy, and that he had no role in the applicant’s job function which was to recruit salespersons. Accordingly, he argues that his relationship with the applicant is not covered under the Code, and the Application cannot proceed against him.
29The applicant argues that the respondent was one of her employers; that he had committed to providing her with bonus payments although he never did in the period of August to October 2009 when she returned to work. The applicant submits that the respondent directed the regional office in which the applicant worked and was responsible for directing the persons recruited by the applicant. The applicant submitted that the respondent would be an employer as defined in the Employment Standards Act, 2000, S.O. 2000, c. 41.
30The Supreme Court of Canada has consistently held that human rights statutes across Canada should be given a fair, large, and liberal interpretation to advance and fulfill their purposes of preventing discrimination against identifiable protected groups. See Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536, 1985 CanLII 18 (S.C.C.)
31The applicant alleges a contravention of the Code including a breach of section 5(1), which states that “every person has a right to equal treatment with respect to employment without discrimination because of … sex”. As the Board of Inquiry stated in Payne v. Otsuka Pharmaceuticals Co Ltd., 2001 CanLII 26231 (ON H.R.T.),
Section 5(1) does not state that “no employer shall deny equal treatment to an employee”. Indeed, there is no definition of “employment” in the Code. Rather, section 5(1) involves discrimination “with respect to employment”. “Equal treatment with respect to employment without discrimination” includes more than the traditional employer-employee relationship. In Canada (Attorney General) v. Rosin (1990), 1990 CanLII 12957 (FCA), 16 C.H.R.R. D/441, the Federal Court of Appeal, in upholding the decision of the Canadian Human Rights Tribunal, stated at D/449:
Remembering the broad and liberal interpretation that must be taken to this type of legislation…[C]ourts have interpreted the words [i.e., “employ” and “employment”] broadly, finding employment relationships to exist in this context where in other contexts they might not have so found.
An infringement of section 5(1) can occur between an employee and other persons who are not “employers” in the traditional sense. For example, a trade union may be held liable in two ways: where it caused or contributed to the discrimination by participating in the formulation of the work rule that has a discriminatory effect on a complainant; or if it obstructs or blocks the efforts of an employer to accommodate: see Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (S.C.C.), [1992] 2 S.C.R. 970 at 990-991.
In the Board’s view, there must be some nexus or link in the chain of discrimination between the respondent and the complainant. The Board is satisfied that this nexus “appears” to exist with regards to the parties that it has decided to add in the instant motion. [Emphasis added.]
32I am satisfied that the allegations made by the applicant against the respondent fall within the scope of “with respect to employment”. It appears clear that a nexus or link appears to exist with regards to the parties. They both work for Just Energy in the same office. They have routine and regular contact in relation to the applicant’s job function of recruiting regional salespersons. The respondent depends on the applicant’s work in order to carry out his own job responsibilities. It appears their respective jobs require that they maintain an ongoing liaison in relation to determining the types of regional salespersons who would be appropriate to hire, as well the co-ordination, training, and retention of these salespersons. The applicant’s allegations occur within the context of the respondent’s involvement in and impact on her employment
33The Tribunal will continue to process the Application. The parties will be contacted to determine their willingness to participate in mediation.
34I am not seized of this matter
Dated in Toronto, this 30th day of March, 2011
”signed by”__________
Eric Whist
Vice-chair