Guide To Releases With Respect To Human Rights Complaints

I. Introduction

The issue of how to deal with releases has been a matter of concern to the Commission.

Under section 34(1)(b) of the Human Rights Code [the "Code"] the Ontario Human Rights Commission [the “Commission”] can exercise its discretion to not deal with a complaint where the complaint has been brought in bad faith. The Commission often receives requests from employers to exercise this power in cases where an employee has either been terminated, dismissed, or resigned from his or her position and has then signed a “release.”

Many standard form releases will often contain a broadly worded clause simply indicating that the person agrees that he or she "will not bring any proceedings or claims" or "waives all rights" under, amongst other things, the Code.

Employers take the position that in the face of such a release to permit the complaint to proceed would constitute bad faith. When confronted with such a claim, complainants usually take the position that they were not aware of what they were signing, or that they did not know about the discrimination at the time the release was signed, or that they did not have enough time to think about what to do, or that they felt pressured into signing the release because they believed that if they did not they would not receive any severance pay at all, or simply that they needed the money right away.

Ontario courts and the Supreme Court of Canada have set out important principles that have assisted the Commission in dealing with these often-difficult “release” cases. Accordingly, the Commission has formed the view that the time is ripe for the development of a guide to releases with respect to Human Rights Complaints. It is hoped that this Guide will serve to assist both employers and employees, and will help them to structure termination agreements and releases that reflect appropriate human rights principles.

In addition, the Commission offers a sample proposed text for a release of a human rights claim. The text is intended to address a number of these important principles. Mere use of the words in this text alone, however, is not enough. Parties to a release should also deal with each other in a manner consistent with the principles and procedures set out in this Guide. It is important, therefore, to review the content of this Guide, including the tips for Employers and Employees in the Appendix in negotiating and concluding a release of a human rights complaint.

The Commission has identified that the standard form release that is often used is problematic for a number of reasons. Accordingly, the Commission proposes the following text as being preferable:

The parties agree that they have discussed or otherwise canvassed any and all human rights complaints, concerns, or issues, arising out of or in respect to the employee's employment at Company "A".
The parties agree that this agreement constitutes a full and final settlement of any existing, planned, or possible complaint or complaints against the employer under the Human Rights Code up to the date of this agreement, arising out of or in respect to the employee's employment at Company "A".
The parties agree that the employee has received a separate sum in the amount of $X as compensation for settling and resolving the outstanding human rights complaint, concern, or issue.

3a. [Where the employee agrees that that there are no human rights issues or concerns, the following can be included instead of paragraphs 2 and 3]: The employee agrees that he or she is aware of his or her rights under the Human Rights Code, and confirms that he or she is not asserting such rights or advancing a human rights claim or complaint.

The parties further agree that signing this agreement is not a condition for the employee to first receiving money to which he would otherwise be entitled to by operation of law. Such moneys include the separate sum of $X for wages, $Y for statutory severance pay, and $Z for statutory termination pay.
The employee agrees that he [or she] has been given sufficient time and opportunity to obtain independent legal advice before signing this settlement agreement and
- (a) He [or she] has done so, or
- (b) He [or she] has freely chosen not to do so.

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