Briggs v. Provincial Health Services Authority, 2025 BCHRT 257
Date Issued: October 15, 2025
File: CS-003871
Indexed as: Briggs v. Provincial Health Services Authority, 2025 BCHRT 257
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:
Todd Briggs
COMPLAINANT
AND:
Provincial Health Services Authority
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Sébastien Anderson
Counsel for the Respondent: Derek A. Frenette
I INTRODUCTION
[1] Todd Briggs worked for the Provincial Health Services Authority [PHSA] for two years and four months. His employment was terminated without cause for performance issues. Under the termination clause in his employment contract, Mr. Briggs was entitled to a notice period, or a severance payment in lieu of notice. At the time of his termination, PHSA offered Mr. Briggs four months’ severance in lieu of notice in exchange for signing a release form. Among other things, the release precluded Mr. Briggs from bringing a human rights complaint. The offer was open for seven days. Three days later, Mr. Briggs signed the offer letter and release form. In accordance with the terms of the offer, his severance payments ended in March 2021.
[2] In April 2021, Mr. Briggs filed this human rights complaint. He alleges that his performance issues were caused by his multiple sclerosis. He alleges that, by terminating him without inquiring into any disability-related issues, PHSA discriminated against him based on his disability in violation of s. 13 of the Human Rights Code.
[3] The PHSA applies to dismiss Mr. Briggs’ complaint based on the offer and release. It argues that it does not further the Code’s purposes for the complaint to proceed in circumstances where Mr. Briggs agreed to release it from human rights complaints: Code, s. 27(1)(d)(ii). In its initial application, it argued that the four months’ severance it paid Mr. Briggs was consistent with “his employment agreement, the [Public Sector Employers Act] and the [Employment Termination Standards Regulation]”. This prompted me to seek further submissions about what consideration Mr. Briggs received in exchange for the release. In response, PHSA argued that Mr. Briggs had no legal entitlement to any specific amount of severance in lieu of notice unless or until he proved it through a lawsuit for wrongful dismissal. As such, the consideration for the release was PHSA’s agreement to abandon “its right to defend a claim for wrongful dismissal and to argue against a longer notice period”.
[4] For the reasons that follow, PHSA has not persuaded me that the parties entered into a binding agreement, under which Mr. Briggs released it from a human rights complaint. The application to dismiss the complaint is denied.
[5] To make this decision, I have considered all the information filed by the parties. I only refer to what is necessary to explain my decision.
II ISSUE
[6] People cannot contract out of their rights under the Code: Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC). For that reason, the fact that parties have entered into a settlement agreement respecting a human rights dispute does not deprive the Tribunal of jurisdiction to hear the dispute: Thompson v. Providence Health Care, 2003 BCHRT 58 at para. 38. However, like the courts, the Tribunal recognizes the strong public interest in honouring settlement agreements: Nguyen v. Prince Rupert School District No. 52, 2004 BCHRT 20 at para. 15; Kuo v. Kuo, 2017 BCCA 245 at para. 37; Sable Offshore Energy Inc. v. Ameron International Corp, 2013 SCC 37 at para. 11. The Tribunal has discretion to dismiss a complaint based on an agreement between the parties, where it would not further the purposes of the Code to allow the complaint to proceed: Code, ss. 3 and 27(1)(d)(ii).
[7] The burden is on the party seeking to rely on an agreement – here, PHSA – to prove “first, the existence of a valid settlement agreement, and second, that the settlement agreement was intended to release the respondent from any further liability in respect of the human rights complaint in issue”: Thompson at para. 46. If it does that, then Mr. Briggs bears the burden of persuading me that his complaint should be allowed to proceed in the face of an agreement that expressly purported to resolve it: Thompson at para. 46.
[8] I begin with a brief background to this complaint.
III BACKGROUND
[9] Mr. Briggs began his employment on July 6, 2018. He signed an employment contract, which included “Terms and Conditions of Employment” [Employment Contract]. His employment was also subject to the Public Sector Employers Act and Employment Termination Standards Regulation.
[10] The Employment Contract includes provisions related to the termination of employment not for cause [Termination Clause]. The Termination Clause is consistent with the statutory requirements of the Employment Termination Standards Regulation. It provides, in relevant part:
E) TERMINATION NOT FOR CAUSE
1. Reasonable Notice – General
(a) PHSA may terminate the employment of an employee at any time, without just cause, by providing the employee with Reasonable Notice (the Notice Period), or Severance in lieu of reasonable notice…
2. Reasonable Notice – Length
(a) Reasonable common law standards shall apply where statute or regulation does not provide otherwise. The Notice Period or Severance must not exceed an amount calculated according to an employment termination plan for the employee that has been approved by the Minister. If no employment termination plan has been approved, the lesser of:
i. an amount equal to the remaining term of the contract, or
ii. an amount provided under common law calculated as though the employee were subject to an indefinite term agreement with no provision regarding Severance.
(b) the maximum Notice Period that an employee may be given is eighteen (18) months.
3. Severance in Lieu of Reasonable Notice
(a) PHSA has, in its sole discretion, the additional option of terminating the employee’s employment immediately and, unless the parties otherwise agree, paying the employee an amount equivalent to the amount of salary and benefits that the employee would have earned during the Notice Period (the Severance Payment).
(b) Severance Payments will be in the form of periodic payments unless PHSA, in its sole discretion, considers a lump sum payment to be more appropriate. Severance Payments in excess of six (6) months will normally be in the form of salary continuance.
[11] The Employment Contract further provides that employees have a duty to mitigate their losses following a termination and, where they do, they may not be entitled to all or part of their severance payment during the period where they have new employment.
[12] Mr. Briggs’ employment was terminated, without cause, on November 24, 2020. At that time, PHSA presented him with a single “without prejudice” letter. I will refer to this as PHSA’s “Offer”.
[13] The Offer started:
As per our conversation today, November 24th, please be advised that PHSA is providing you with notice, effective today, that your employment with the Provincial Health Services Authority (PHSA) is being terminated. You are being provided with a notice period of 4 months from November 25th 2020 to March 25th 2021 (the “Notice Period”). Your last day of work will be today.
The following terms and conditions will apply to your separation of employment and are in accordance with PHSA’s terms and Conditions of Employment (the “Terms”), the Employment Termination Standards regulation of British Columbia… and the Employment Standards Act of British Columbia… [as written]
[14] The Offer then sets out 13 terms, starting with:
1. PHSA will make severance payments to you in lieu of notice by continuing your salary, including pension contributions (the “Severance Payments”), for a period of 4 months from November 25th 2020 to March 25th 2021 (the “Payment Period”). You will continue to accrue pensionable service during the Payment Period.
[15] Terms 2-8 and 10-11 reflect Mr. Briggs’ statutory and contractual entitlements and obligations, including:
a. The continuation of benefit plans entitlements (Offer, s. 2; Employment Contract, s. 8(E)(3)(a));
b. Mr. Briggs’ duty to mitigate (Offer, ss. 3-5; Employment Contract, s. 8(E)(5));
c. The definition of “employment” and “re-employment” (Offer, s. 6; Employment Contract, s. 8(E)(5(a));
d. Payment of vacation credits “in accordance with the requirements of the [Employment Standards] Act” (Offer, s. 7);
e. Payments are subject to applicable statutory withholding (Offer, s. 8); and
f. A reminder that Mr. Briggs continued to be bound by PHSA’s Standards of Conduct Policy, and that intellectual property remains the property of PHSA (Offer, ss. 10-11).
[16] Under s. 9, PHSA offered to provide outplacement services for three months. The parties did not make any specific submissions about this part of the Offer.
[17] The final terms of the Offer impose new obligations on Mr. Briggs:
12. You agree to maintain the terms of this letter in strict confidence and not disclose them to any person outside your immediate family, without the consent of PHSA, except to discuss them with your legal counsel or financial advisor or as required by law.
13. You agree to execute the attached Full and Final Release form in satisfactory form.
[18] The Offer then sets out some housekeeping issues about Mr. Briggs returning his work-related equipment and documents, and how he will obtain his Record of Employment. It ends by encouraging Mr. Briggs to “take the time to review the terms outlined and secure legal advice as necessary”. It stated that “terms and conditions of this offer are open until Tuesday December 1st” – a period of seven days.
[19] Mr. Briggs did not get legal advice. Three days later, on November 27, he signed the Offer. He also signed the release form, in which he released the PHSA from any legal action “by reason of or arising out of my employment or the termination of my employment with the Releasee” [Release]. The Release specifically addressed the prospect of a human rights complaint as follows:
IT IS FURTHER UNDERSTOOD AND AGREED that upon fulfillment of the terms of the settlement and payments, the Releasee will have satisfied all obligations under the B.C. Employment Standards Act, [RSBC 1996], Chapter 113, and Human Rights Code [RSBC 1996], Chapter 210 in relation to the Releasor’s employment and the cessation of the Releasor’s employment, and there is no factual or legal basis for any claim or entitlement against the Releasee under any of those statutes.
[20] Mr. Briggs received his salary and benefits continuation, per the Offer, until March 25, 2021. During this period, he successfully applied for long term disability benefits [LTD]. He continues to receive LTD.
[21] On April 23, 2021, Mr. Briggs filed this human rights complaint against the PHSA.
IV DID THE PARTIES ENTER AN ENFORCEABLE AGREEMENT?
[22] A contract is formed where there is “an offer by one party accepted by the other with the intention of creating a legal relationship, and supported by consideration”: Scotsburn Co‑operative Services Ltd. v. W. T. Goodwin Ltd., 1985 CanLII 57 (SCC); Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22 at para. 35. In this case, there is no dispute that PHSA made an offer to Mr. Briggs, with the intention of creating legal obligations, and he accepted it. The issue is whether that offer was supported by consideration.
[23] To establish consideration, PHSA must prove that it offered something of value to Mr. Briggs that he was not already entitled to under applicable legislation or his Employment Contract: Sui v. HungryPanda Tech Ltd, 2024 BCSC 1856 at paras. 50-53. The BC Supreme Court made this point plainly in Western Surety Co. v. Hancon Holdings Ltd, 2007 BCSC 180:
Compliance with a pre-existing obligation does not constitute consideration for a new contract. There is no consideration if all the plaintiff does is perform an obligation imposed upon it by a prior contract between the plaintiff and the defendant… Promising to do what one is already contractually obliged to do is not consideration which provides support for the new contract … [para. 30, citations omitted]
[24] In its dismissal application, PHSA argued that Mr. Briggs “executed the Release in exchange for salary continuance payments, the continuation of group insurance benefits, the continued accrual of pensionable service, and other benefits during a four-month Notice Period”. It argued that the consideration was sufficient, and “satisfied the requirements in both the Act and the Regulation, and the common law”. It then put this argument a slightly different way: “The terms of the Agreement were consistent with the Complainant’s entitlement under his employment agreement, the Act, and the Regulation, and sufficient consideration was therefore provided”: para. 61.
[25] I then wrote to the parties to seek further submissions about the consideration for the release:
Based on the materials the parties have provided, it is unclear to me what consideration Mr. Briggs obtained in exchange for the release. PHSA says that, under the terms and conditions of his employment, Mr. Briggs was entitled to common law reasonable notice, up to a maximum of 18 months. In its submissions, the PHSA argues that four months was a reasonable notice period for Mr. Briggs, citing case law involving similar circumstances. PHSA submits: “The terms of the Agreement were consistent with the Complainant’s entitlement under his employment agreement, the [Public Sector Employers Act] and the [Employment Termination Standards]”. Other terms in the agreement, including terms #3, 4, 5, 6, 7, 8, 10, and 11 appear to reflect the terms and conditions of Mr. Brigg’s employment. This begs the question: if the settlement agreement reflects Mr. Briggs’ contractual entitlements and obligations, then what did he get in exchange for the release?
[26] In its supplemental submissions, PHSA argues that, because the Employment Contract did not fix an amount of “reasonable notice” on termination, Mr. Briggs was not entitled to a reasonable notice period unless he successfully sued the PHSA for wrongful dismissal or negotiated an amount with PHSA (presumably in exchange for a release). It argues that Mr. Briggs’ only entitlement upon termination was “the mandatory minimum of two weeks under section 63(3) of the [Employment Standards Act]”. However, anything beyond that was not “mandatory” and not enforceable “short of an action for a declaration of wrongful dismissal and judgment for damages”. It argues that, to find there was no consideration for the Offer, would “effectively render every release given by an employee in the context of a post-termination agreement as to a notice period enforceable”.
[27] There are two main difficulties with PHSA’s arguments.
[28] First, PHSA ignores the express terms of Mr. Briggs’ Employment Contract and the Employment Standards Termination Regulation, which governs his employment. Both say that Mr. Briggs was entitled to a notice period, calculated with reference to common law factors, up to a maximum of 18 months. This is not a circumstance where a reasonable notice period is an implied term: Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC). The Employment Contract has a Termination Clause, which expressly says that Mr. Briggs is entitled to a notice period. In this circumstance, I imagine an employee would be surprised to learn that they were required to sue their employer for wrongful dismissal to get what their contract said they were entitled to.
[29] Second, PHSA has argued that the four months’ severance payment in the Offer was consistent with Mr. Briggs’ contractual and statutory entitlements. The effect of this argument is that PHSA has not identified anything of further value flowing to Mr. Briggs, beyond what it argues that he was already entitled to.
[30] I appreciate that the amount of the notice period required under the Termination Clause is not defined. The calculation is determined by PHSA, or may ultimately be determined by court judgment. It would have been open to PHSA to determine, applying common law factors, that Mr. Briggs was entitled to a three month notice period under the Termination Clause and to pay him that amount on termination. It could then offer Mr. Briggs an additional four weeks’ pay, in exchange for signing the Release. This is what the employer did in Ghane v. Lush Fresh Handmade Cosmetics Ltd, 2009 BCHRT 13, a case cited by the PHSA. In that case, the employee was contractually entitled to one week’s notice or pay in lieu. At termination, the employer offered him four weeks of wages and other benefits in exchange for a release. The Tribunal accepted this was adequate consideration, reasoning that “the terms of the Settlement, while not generous, far exceeded what Mr. Ghane had contracted for at the commencement of his employment”. As this case demonstrates, employers can readily enter into enforceable agreements with an employee at termination, so long as they offer the employee something more than they are entitled to under their contract or legislation.
[31] However, that is not what happened here. PHSA argues that, under his contract and applicable legislation, and applying common law factors, Mr. Briggs was entitled to a four month notice period. It then offered Mr. Briggs what it says he was entitled to anyway under the Termination Clause, in exchange for signing the Release. Respectfully, that cannot be valuable consideration.
[32] In its supplemental submissions, PHSA appears to shift its position slightly. It argues that Mr. Briggs was only entitled to two weeks’ notice under the Employment Standards Act, and so therefore the additional 15 weeks’ pay is consideration for the Release. However, this argument does not address the Termination Clause in the Employment Contract, or the effect of the Employment Termination Standards Regulation, which I understand applied to Mr. Briggs’ employment. This argument also does not reflect what was presented to Mr. Briggs in the Offer. There is no evidence before me that PHSA indicated it was going to pay Mr. Briggs two weeks’ wages in lieu of notice separately from the Offer.
[33] In addition to the notice period, PHSA argues that it provided consideration by forgoing “its right to reduce the amount payable by 50% if Mr. Briggs mitigated his damages by securing employment with a non-public sector employer”, citing s. 5(c) of the Offer. Respectfully, I do not understand this argument. The Employment Contract says:
If an employee accepts similar employment with an employer not in the public sector during the period of notice in lieu of which severance is given, all salary continuance and benefit coverage will cease immediately on the date that the employee accepts the new employment, and the employee may be paid a lump sum payment equal to fifty percent (50%) of the salary the employee would have received during the remainder of the Notice Period. …
[34] The Offer says:
5. If you commence similar employment with a non-public sector employer during the Payment Period, then:
a) You must immediately tell [the Human Resources Manager] of PHSA in writing at the contact information below;
b) Your salary and all benefit plans entitlements will be discontinued as of the date you commence your re-employment, and you will no longer accrue pensionable service with PHSA, and
c) PHSA will give you a lump sum payment equal to 50% of the Severance Payments that you would have received during the remainder of the Payment Period.
[35] On its face, the Offer is substantively the same as the Employment Contract.
[36] Finally, as I have said, the Offer refers to “outplacement services” for a period of three months. I could not identify whether Mr. Briggs was entitled to this through his Employment Contract or any other applicable policy. It is possible that this could be some form of consideration. However, PHSA did not argue that it was. Since the burden is on PHSA in this application, I do not consider this question further.
[37] It was incumbent on PHSA, as the employer, to be clear with Mr. Briggs at the time of his termination about what it was offering him in exchange for signing the Release. It is well understood that employment is a relationship marked by a profound power imbalance: Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC) at para. 92. Employees have less bargaining power than employers: Machtinger. This imbalance is at its peak when the “employment relationship ruptures”: Wallace at para. 95. That is the point when employees need the most protection: Wallace at para. 95. In this case, the Offer needlessly confuses the mechanics of Mr. Briggs’ termination (including how PHSA will execute its obligations under the Employment Contract and how Mr. Briggs should return his equipment) with an expectation that Mr. Briggs maintain confidentiality and sign a release form. In my view, the consequence of this confusion should be born by the employer who created it. This is consistent with the general approach to employment contracts, which prefers an interpretation favourable to an employee: Bryant v Parkland School Division, 2022 ABCA 220 at paras. 12-13.
[38] PHSA has not persuaded me that the parties entered into a valid agreement to settle Mr. Briggs’ human rights complaint. As a result, there is no basis to dismiss the complaint under s. 27(1)(d)(ii) of the Code.
V CONCLUSION
[39] The dismissal application is denied. The complaint will be scheduled for a hearing.
Devyn Cousineau
Vice Chair