NC v. The Society, 2025 BCHRT 198
Date Issued: August 15, 2025
File: CS-000057
Indexed as: NC v. The Society, 2025 BCHRT 198
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
NC
COMPLAINANT
AND:
The Society
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Devyn Cousineau
On his own behalf: NC
Counsel for the Respondent: Matthew Desmarais
I INTRODUCTION
[1] NC filed a human rights complaint, alleging that the Society discriminated against him in employment based on his disability. The Society says that the parties have settled this human rights complaint, and asks the Tribunal to dismiss it under s. 27(1)(d)(ii) of the Human Rights Code. NC agrees that the parties had reached agreement on some terms of a settlement but says that he still needed to get some advice before accepting all of it. Further, he says he never agreed to the expansive terms in the Society’s release. He asks for the complaint to proceed to a hearing.
[2] For the following reasons, I am satisfied that there was a matching offer and acceptance on all terms essential to an agreement. The parties reached a binding agreement to resolve NC’s human rights complaint. In these circumstances, it does not further the purposes of the Code for the complaint to proceed. It is dismissed under s. 27(1)(d)(ii).
[3] I begin with two preliminary issues: the Society’s application to limit publication, and NC’s application to file further submissions.
II Application to limit publication
[4] The Society asks the Tribunal to anonymize the parties’ names in this decision. It argues that anonymity is essential to preserve the confidentiality of the Tribunal’s mediation process, and the confidentiality which it negotiated in the alleged settlement agreement at issue.
[5] NC opposes anonymization. He argues, first, that the confidentiality that the Society was bargaining for in the settlement process is unenforceable because the parties did not reach agreement. Second, he argues that the alleged settlement agreement contemplated several exceptions to confidentiality.
[6] I am satisfied that, for the limited purposes of this decision, the Society’s privacy interests outweigh the public interest in full disclosure of the parties’ identities: Tribunal Rules of Practice and Procedure [Rules], Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). But for the parties’ dispute about the settlement agreement, their settlement discussions and the terms of the alleged agreement would have been confidential: C v. R, 2011 BCHRT 55. Confidentiality is an important part of the Tribunal’s mediation process, which allows for full and frank discussion to resolve complaints: Tribunal Mediation Policy. It applies regardless of whether the parties reach an agreement. Further, it was an express term of the parties’ alleged agreement that the Society’s apology would be confidential between the parties, with some limited exceptions. The Society says, and I accept, that this was an important condition which allowed them to propose resolutions while at the same time disputing liability. Finally, the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37. The anonymization is limited to this decision, and the public can understand the issues and the Tribunal’s reasoning without knowing the parties’ identities.
[7] I grant the application to anonymize the parties’ identities in this decision, and have done so.
III APPLICATION TO FILE FURTHER SUBMISSIONS
[8] NC applies to file further submissions to address several issues which he says were raised for the first time in reply. He lists 16 arguments, which he has grouped under six headings.
[9] The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Tribunal Rules of Practice and Procedure, Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24 at para. 17. The Tribunal exercises caution in allowing further submissions, to guard against an “endless submission process”: Murphy v. VIHA and others (No. 2), 2014 BCHRT 102 at para. 9. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2), 2006 BCHRT 201, para. 21.
[10] The Society takes no position on two of NC’s proposed further submissions, which address: (1) a typographical error in his original materials, and (2) whether the parties reached an enforceable settlement agreement notwithstanding a disagreement about the terms of the release. I agree these submissions respond to new issues raised in reply which, in fairness, NC should have the opportunity to address. I have considered these further submissions.
[11] The Society opposes NC’s other proposed further submissions, arguing that they do not address new issues. With two exceptions, I agree.
[12] The first exception is NC’s further submissions about the parties’ communications between October 2024 and January 2025. This was a new issue raised by the Society in its reply, which in fairness NC should have an opportunity to address.
[13] The second exception is NC’s further submission in response to the new claim in Matthew Desmarais’s second affidavit, that NC had expressly advised him that he was agreeable with the contents of the Society’s release. This is new information on a critical issue, and fairness requires NC should have the opportunity to address it.
[14] The remainder of NC’s proposed further submissions addresses issues that he had a full opportunity to address in his response, and which do not warrant a further submission. On these issues, the Society’s reply was within the proper scope of replying to NC’s arguments. This necessarily included arguments intended to contradict and undermine his position, which were made for the first time in reply. This is proper. A reply argument should not merely repeat what was, or could have been, said in an original submission. It is intended as a narrow response to arguments raised in the opposing party’s submission. By its nature, it gives the Society the last word.
[15] NC’s application to file further submissions is granted in part. I have considered the further submissions at paras. 4-6, 12-13, and 18-21 of his argument, supported by paras. 3-6 of his affidavit #2.
IV DECISION
[16] Section 27(1)(d)(ii) of the Code grants the Tribunal discretion to dismiss a complaint where it would not further the Code’s purposes to proceed. Those purposes include public and private interests: s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. University of British Columbia, 2003 BCHRT 73 at para. 59; Tillis v. Pacific Western Brewing and Komatsu, 2005 BCHRT 433 at para. 15.
[17] In light of those dual interests, there are circumstances where the Code’s purposes can be best met through a settlement negotiated between the parties. Those negotiated outcomes can save considerable public and private resources and may offer a more expeditious resolution for the dispute. They may also encompass remedies outside the Tribunal’s power, which more closely match the parties’ interests, and which may better serve the relationship in the long run. For those reasons, the Tribunal recognizes the role of settlement agreements in furthering the remedial purposes of the Code, and encourages and invests its own resources to help parties resolve complaints through mediation: Nguyen v. Prince Rupert School District No. 52, 2004 BCHRT 20 at para. 15.
[18] This application turns on whether the parties reached a settlement agreement to resolve NC’s human rights complaint. Since the Society is the party seeking to rely on the settlement, it bears the burden of proving that the parties reached an agreement that was intended to release the Society from further liability in respect of the human rights complaint: Thompson v. Providence Health Care, 2003 BCHRT 58 at para. 46. NC did not make alternative arguments about why, even if I find a settlement agreement exists, the complaint should be allowed to proceed: Thompson at para. 46. For that reason, my decision that the parties reached a settlement agreement is determinative.
[19] To decide whether a settlement agreement exists, I apply the well-known legal principles articulated by the court in Provincial Health Services Authority v. Sayyari, 2022 BSC 2092 at paras. 49-51, aff’d 2023 BCCA 413:
The test for whether a contract was formed is whether it would be clear to an objective, reasonable bystander informed of the material facts, that the parties intended to contract, and whether the essential terms of that contract can be determined with reasonable certainty: see Lacroix v. Loewen, 2010BCCA 224 at paragraph 36.
Further, in Berthin v. Berthin, 2016 BCCA 104, the Court of Appeal said at paragraph 46:
[46] The test, of course, is not what the parties subjectively intended but “whether parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract”: see G.H.L. Fridman, The Law of Contract in Canada (6th ed, 2011) at 15 . . .
These principles were summarized recently by the Court of Appeal in Oswald v. Start Up SRL, 2021 BCCA 352 at paragraph 34, quoting with approval from the respondent’s factum:
(a) there must be an intention to contract;
(b) the essential terms must be agreed to [by] the parties;
(c) the essential terms must be sufficiently certain;
(d) whether the requirements of a binding contract are met must be determined from the perspective of an objective reasonable bystander, not the subjective intentions of the parties; and
(e) the determination is contextual and must take into account all material facts, including the communications between the parties and the conduct of the parties both before and after the agreement is made.
[20] I am satisfied that the parties had an intention to contract. They attended two Tribunal-facilitated mediations for that express purpose, and engaged in direct settlement discussions. Their evidence is consistent that the parties were attempting to enter into a “global settlement” that would resolve NC’s human rights complaint and his related litigation under the Workers Compensation Act.
[21] The issue here turns on whether there was “matching offer and acceptance on all terms essential to the agreement”: Apotex Inc v. Allergan Inc, 2016 FCA 155 at para. 30. The parties dispute whether they agreed on essential terms.
[22] Defining the “essential terms” of an agreement is contextual, considering the “nature of the agreement and the circumstances in which it was made”: Fang v. Bob Landscaping Corp, 2025 BCCA 27 at para. 27. Where the parties have agreed on essential terms, an agreement may exist even if they have not finalized all the ancillary, or non-essential, terms implicit in the agreement: Apotex at para. 33. This includes details about a release: Fieguth v. Acklands Ltd., 1989 CanLII 2744 (BCCA) at para. 21. Where the parties have agreed to “conclusively settle an action”, that agreement will “implicitly call for the execution of a release”: Chan v Chan, 2025 BCCA 262 at para. 31. The details of the release are often finalized after a settlement agreement is reached, and disagreement about those details does not necessarily mean that the parties’ agreement on essential terms are not binding.
[23] I turn next to the circumstances of NC’s complaint and the parties’ attempts to resolve it. Before doing so, I must express my concern that the Society’s evidence is two affidavits sworn by their lawyer, Mr. Desmarais, who is also representing them in this application. Absent exceptional circumstances (which I am not aware of here), this is a practice to be avoided: Pooyan v. British Columbia (Ministry of Health), 2025 BCSC 1210 at para. 37. In certain circumstances, the Tribunal may refuse to hear from a lawyer who is speaking to their own affidavit on an issue of substance, which is in dispute: Pooyan at para. 41. As it stands, I am in the “invidious position” of having to decide whether to accept Mr. Desmarais’ evidence over NC’s on one important issue: Pooyan at para. 37, citing Webb v. Attewell, 1994 CanLII 8699 (BCCA) at para. 32. As I will explain, I have accepted NC’s. Given the outcome in the application and the practical implications for the parties, I have not found it necessary to refuse to hear from Mr. Desmarais or to order cross-examination. However, I do strongly recommend against this practice.
A. NC’s complaints
[24] In his human rights complaint, NC alleges that his employment/volunteer position was terminated because of a mental disability stemming from a concussion. In his complaint form, he said the following about the remedies he was seeking:
1. Policy to guide conduct of [Society] staff, and safeguard volunteers.
2. Appropriate training for [Society] staff, about Human Rights discrimination.
3. An apology.
4. I will NOT accept any monetary award.
[25] In response, the Society takes the position, first, that NC is not an employee and, second, that his concussion was not a factor in its decision to remove him from his volunteer position.
[26] In addition to his human rights complaint, NC filed a complaint with WorkSafeBC alleging that the Society took prohibited actions against him, including dismissing him, in retaliation for raising safety concerns. WorkSafeBC dismissed this complaint, and NC appealed that decision to the Workers’ Compensation Appeal Tribunal [WCAT]. At the time the parties filed their materials in this application, WCAT’s decision remained outstanding.
[27] Throughout their settlement discussions, the parties agree that they were negotiating to resolve both NC’s human rights complaint and his prohibited action complaint with WorkSafeBC (including the WCAT appeal).
B. Settlement discussions
[28] The Society first emailed NC an offer to settle on October 15, 2024. The offer proposed that the Society would provide NC with an apology and assurances regarding its policies in exchange for a release, confidentiality, and the withdrawal of proceedings at this Tribunal and WCAT. The offer attached the Society’s proposed release. Mr. Desmarais followed up on October 28 and November 8, 2024 and January 9, 2025. NC did not respond to this offer. He says he did not see the release at this time.
[29] On February 10, 2025, the parties met in Tribunal-facilitated mediation. The parties agree that their negotiations focused on NC withdrawing his human rights complaint and WCAT appeal, in exchange for an apology. By that point, NC had indicated he was no longer seeking policy-related remedies in a settlement. The parties’ energy was focused on the wording of the apology.
[30] Following the mediation, on March 4, Mr. Desmarais wrote to NC to confirm that the Society was open to resolving NC’s human rights and WorkSafeBC-related matters on three terms:
1. The [Society] provides you with a mutually agreeable apology that you must keep confidential (other than with a few exceptions);
2. You fully and finally withdraw/discontinue your HRT complaint and WCAT appeal (and, to the extent necessary, any lingering WorkSafe matters);
3. You sign a full and final release confirming that all matters between you and the [Society] – as well as all matters involving anyone that could reasonably claim indemnification from the [Society] – are fully and finally settled.
Mr. Desmarais again enclosed the Society’s release for NC’s review.
[31] Mr. Desmarais followed up on March 6. NC responded on March 7, raising an issue with some of the language in the apology letter. He confirmed “I believe there is a solid opportunity to resolve this in mediation”. At 7:03 pm on March 9, he proposed revised wording to the apology, confirming that the parties were working on a “global settlement”.
[32] At 8:11 am on March 10, Mr. Desmarais wrote to NC to advise that he was seeking his clients’ instructions on the revised apology language. He said:
In seeking instructions, I have assumed the wording of our release is agreeable. To the extent this assumption is incorrect, I ask that [NC] make us aware of that immediately.
NC says that this assumption was incorrect, because he had “not yet noticed or read the proposed wording” of the release.
[33] Later that same morning, the parties reconvened briefly with the Tribunal mediator to further their discussions. This is where the evidence diverges.
[34] Mr. Desmarais says that, during this mediation, the parties were agreed on all terms except the terms of the apology. He says it was understood that, if the Society gave him instructions to accept NC’s apology wording, the parties would have reached a settlement. In his second sworn affidavit, Mr. Desmarais goes further to say: “I recall the Complainant expressly advising me that the release we had provided was acceptable and that the only matter that needed confirmation was whether [the Society] was agreeable to the Complainant’s apology wording”. He says that he does not recall NC ever saying that he needed to seek legal or other advice as a pre-condition of settlement. He recalls that the parties did not know how NC could withdraw his WCAT appeal, and agreed that NC would speak to his workers’ advisor about how to do it. Mr. Desmarais says that the parties ended the mediation on the understanding he would get instructions to agree to the terms of NC’s apology and confirm a settlement shortly.
[35] NC’s evidence is different. He says the parties “roughly came to agreement on terms that could work for both parties, but there was no ‘acceptance’ of those terms either by me or [the Society]”. For his part, he says that he needed to review the release and consult with his workers’ advisor (whom he refers to as his legal counsel). He says that at this point he still had not seen or read the release. He says he was not prepared to “accept” anything without talking to his workers’ advisor. He categorically denies that he told Mr. Desmarais he was “agreeable with the content of the Release”.
[36] The day after the mediation, March 10, Mr. Desmarais wrote to NC to confirm the parties have agreed to a “full and final settlement”. He sent the signed apology to the mediator to hold in trust until NC withdrew the human rights complaint and his WorkSafeBC-related matters, and executed the Society’s release. NC says that he understood that this communication constituted an offer to settle the complaint. Again, he says he did not notice the attached release.
[37] On March 11, NC emailed the mediator and Mr. Desmarais to advise that he had reached out to his workers’ advisor and was waiting for a response. He wrote, “I want you to know that I moved on that immediately”. Mr. Desmarais understood that NC was working on withdrawing his WCAT appeal and prohibited action complaint, per the terms of their agreement. NC says otherwise. He says he was seeking advice about whether to accept the offer. He says that he did not ask the workers’ advisor to withdraw his WCAT appeal or otherwise take steps to complete the terms of the parties’ settlement. In support, he has filed an email from his workers’ advisor where she says that NC contacted her on March 10, indicating he believed they were close to a mediated settlement with the Society. She says that NC asked her for legal advice about the settlement offer, but that she could not provide that advice. She says that NC has not asked her to withdraw the WCAT appeal.
[38] On March 17, NC emailed the mediator and Mr. Desmarais again. He said he had spoken to his workers’ advisor, and withdrawing his WCAT appeal “is not so easy”. He said that the appeal had been assigned to a Vice Chair and a decision was expected by April 16 (this was later extended to June 16). He wrote:
… After waiting for a decision, based on merits of my case, for almost 5 years, I now find myself potentially less than a month away. Aw you know, what we have discussed is a global resolution of both the HRT and WCB complaints.
Would [the Society] be interested in a resolution that only contemplates HRT resolution? Is that even an option?
Mr. Desmarais’s response was that the parties had reached a settlement, and that NC was expected to comply with it.
[39] On March 23, NC emailed Mr. Desmarais and the Tribunal, disputing that the matter had settled. He said that he had no opportunity to review or understand the Society’s release during the mediation, and had never agreed to the terms of the release. He withdrew any previous offers to the Society while still expressing hope the issue could be resolved.
[40] NC says that March 23 was the first time he saw the Society’s release form. The release is just under 2.5 pages long, single spaced. It includes a non-disparagement and confidentiality clause. It also sets out several clauses underscoring the same basic point: NC (and anyone authorized on his behalf) will withdraw his existing legal actions and not start any other legal actions against the Society for anything arising out of his experience volunteering with the Society, whether known or unknown.
[41] NC says he was surprised to see the broad scope of the release. While he agrees that he told the Society he would sign “a release form”, he says he understood that it would encompass the human rights complaint and his WorkSafeBC-related matters. He says:
I have never agreed to the content of that release form and I would never for simple reasons. It reaches far beyond the scope of the BCHRT complaint and the WorkSafeBC complaint. It releases [the Society] from all action by me, and even my heirs, for actions and omissions by [the Society], whether known by me or not. This is not reasonable! I would not ever entertain a release for [the Society] that goes beyond BCHRT and WorkSafeBC.
NC says he did not envision the release “to encompass my rights under any other legislation or tort, either for me, my family or my heirs, for things in the past, future, known, or unknown”. He says that he never accepted these terms.
C. Essential terms
[42] In the context of this dispute, I am satisfied that the essential terms of an agreement between the parties were that:
a. The Society would provide NC with a mutually-agreed upon apology,
b. NC would keep the fact and contents of the apology confidential, with some exceptions, and
c. NC would withdraw his human rights complaint, WCAT appeal, and any related WorkSafeBC complaints.
[43] These terms reflect what NC wanted – an apology – and what the Society wanted – the end to litigation in a confidential process. NC had agreed to the second two terms. This was the premise for all the parties’ efforts to agree upon the wording of the apology. Just before the second mediation, NC proposed wording for the apology. In doing so, he was extending an offer to settle. Once the Society accepted that wording, I am satisfied that a reasonable person would understand that the parties had reached an agreement on the essential terms: Apotex at para. 32.
[44] I do not accept NC’s argument that he had not agreed to the essential terms because he needed to talk to his workers’ advisor. He understood that the negotiations were to resolve his human rights and WorkSafeBC complaints. He referred to this as a “global settlement”. The only thing the parties were negotiating about was what he wanted: an apology. When he proposed wording for an apology, the only thing left was for the Society to accept his offer or make a counter-offer.
[45] I agree with the Society that it doesn’t make sense that NC would be seeking advice about whether to accept an apology that he wrote. This is supported by NC’s communications after he spoke to his advisor, which queried whether the Society would be willing to exchange the apology for the withdrawal of his human rights complaint only. In doing so, he acknowledged this was a change to what the parties had previously agreed. I find that what NC learned when he spoke to his workers’ advisor is that a decision on his WCAT appeal was imminent. While this new information changed how he viewed the prospect of withdrawing his WCAT appeal, it did not change the fact that he had already offered to do so, in exchange for an apology he proposed. When the Society agreed to the terms of NC’s apology, it was accepting his offer to resolve both actions, and a contract was formed.
[46] The heart of NC’s resistance to the agreement is the language in the release. He says, and I accept, that he had agreed to sign a release on the understanding that it would reflect his essential agreement to conclusively end his human rights and prohibited action complaints. He argues that the Society’s release was not a “simple release”, like those contemplated in cases the Society cites: Fiegurth and Angelini Estate v. Angelini, 2024 BCSC 1105.
[47] In my view, a release was implicit in the agreement to conclusively end NC’s litigation, and its terms were ancillary rather than essential. An objective person, considering the evidence before me, would conclude that the parties did not intend the precise wording of the release to be a pre-condition to a legally binding agreement: Apotex at para. 33.
[48] The Society argues that, by never raising any objection to the terms of the release throughout the parties’ negotiations, NC accepted it. I disagree. I appreciate that Mr. Desmarais was asking NC to advise if he disagreed with the terms of the release, but NC never responded. NC says, and I accept, that he did not review the release until March 23, at which point he was surprised because he felt it went beyond what the parties had discussed. In my view, silence is not sufficient evidence to support a finding that NC had agreed to the specific terms of the Society’s release.
[49] I also cannot find, on a balance of probabilities, that NC told the Society that he agreed with the terms of the release. NC strenuously denies this. In his email to Mr. Desmarais on March 23, NC asserts that he did not have a chance to review the release during the mediation and never accepted the terms. This is consistent with the fact that NC did not address the release in any of his other written communications, other than to confirm that the parties were discussing “a global resolution of both the HRT and WCB complaints”. I find it most likely that NC confirmed in mediation that he would sign a release, without specifically referring to the terms of the Society’s release.
[50] In short: I am satisfied that it was implied in the parties’ agreement that NC would release the Society from the human rights complaint and prohibited action complaint (including the WCAT appeal). Nothing more. Along with the essential terms set out above, that is the bargain that the release should reflect. It remains open to the Society to draft that form of simple release, for NC to sign.
V CONCLUSION
[51] The parties reached an agreement to settle this complaint. In these circumstances, it does not further the purposes of the Code to allow the complaint to proceed, and it is dismissed under s. 27(1)(d)(ii).
Devyn Cousineau
Vice Chair