Anderson v. Defence Limited Partnership, 2016 HRTO 569

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon Anderson

Applicant

-and-

Defence Limited Partnership

Respondent

DECISION

Adjudicator: Brian Cook

Date: April 29, 2016

Citation: 2016 HRTO 569

Indexed as: Anderson v. Defence Limited Partnership

WRITTEN SUBMISSIONS

Sharon Anderson, Applicant

Self-represented

Defence Limited Partnership, Respondent

Ian Campbell, Counsel

1This Application alleges discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant’s employment with the respondent was terminated on a not for cause basis on November 25, 2014. The applicant was presented with a termination letter that included an offer with respect to payments, and a Full and Final Release. The applicant did not accept the offer. The parties engaged in an ongoing negotiation process which led to a final offer on January 29, 2015 which the applicant accepted.

3The offer included a Full and Final Release which included the following language:

I hereby acknowledge and agree that the parties to this Full & Final Release have discussed or otherwise canvassed any and all human rights complaints, concerns, or issues, arising out of or in respect to my employment with the Releasees and the termination of that employment and that it has been agreed that the said consideration constitutes a full and final settlement of any existing, planned, or possible complaint(s) I may have against the Releasees under Ontario’s Human Rights Code.

4The terms of the settlement between the parties included a salary continuance until September 25, 2015. The applicant filed the Application with the Tribunal on October 8, 2015.

5In a Case Assessment Direction dated December 23, 2015, the Tribunal directed that a preliminary hearing be scheduled to determine if the Application should be dismissed as an abuse of process because the applicant signed a Full and Final Release stating that she would not bring an Application as against the respondent.

6The hearing was scheduled as a telephone conference call hearing for April 28, 2016. On April 25, 2016, the applicant wrote to the Tribunal to advise that she was unable to participate in the scheduled hearing because she had secured employment. She asked that the matter be decided on the basis of the documents and submissions filed by the parties.

7On April 28, 2016, counsel for the respondent called in to the telephone conference call hearing. The applicant did not participate. Counsel advised that, subject to any questions I might have for the respondent, the respondent was content to have the matter decided on the basis of the documents. I had no questions for the respondent and I have proceeded to decide the matter on the basis of the documents and submissions already filed by the parties.

Conclusions

8The applicant makes two primary arguments about why the Application should not be dismissed. Firstly, she submits that it is an established point of law that parties cannot contract out of the Code. I agree with this, but I note that it is also well established that parties can settle any Code-related issue between them. In my view, the above-quoted provision in the Full and Final Release makes clear that this is what happened in this case.

9Secondly, the applicant argues that the Full and Final Release does not include any consideration for settlement of the applicant’s Code-related allegations. The above-quoted provision shows that this is not correct as it specifically provides that the “said consideration constitutes a full and final settlement of any existing, planned, or possible complaint(s) I may have against the Releasees under Ontario’s Human Rights Code.”

10In my view, it is clear that it would be an abuse of the Tribunal’s process to permit her to bring the Application that she explicitly agreed she would not bring. The Application is dismissed on that basis.