The Effect of Final Releases on Human Rights Complaints

Section 41(1)(d) of the Canadian Human Rights Act allows the Canadian Human Rights Commission to exercise its discretion not to deal with a complaint where the issues raised in the complaint have been dealt with through another process. This includes complaints which have been settled and where releases have been signed.

The Commission may choose to deal with complaints despite the fact that the parties have signed a final release if it appears that the human rights issues raised in the complaint have not been addressed in the settlement.

In its determination of the impact of a final release on a complaint the Commission will consider several factors including the following:

1. Did the parties contemplate the human rights claim at the time the release was signed?
2. Was the complainant represented or did the complainant have a reasonable opportunity to seek independent advice? If not, is there evidence that the complainant understood the effect of the release?
3. Was reasonable consideration received in exchange for the complainant’s promise not to proceed with the human rights claim?
4. Was the complainant free of duress?

The Ontario Human Rights Commission has prepared a useful document entitled, Guide to Releases With Respect to Human Rights Complaints, http://www.ohrc.on.ca/en/resources/guides/ (NOTE: you must capitalize the "G" in "guides" for the link to function) which provides helpful information to both employers and employees in understanding and structuring termination agreements and final releases that reflect appropriate human rights principles. The Guide also provides a sample proposed text for a final release of a human rights complaint. Further, its Appendix includes tips for employers and employees in negotiating and concluding a final release of a human rights complaint.