Application to Dismiss Complaint: The Parties Settled the Complaint
Information Sheet DA8
This information sheet tells you:
- Legal Test Section 27(1)(d)(ii) of the Human Rights Code
- The purposes of the Human Rights Code
- Information about settlement agreements
- Sample argument for respondent
- Sample argument for complainant
Section 27(1)(d)(ii) of the Human Rights Code says the Tribunal can dismiss a complaint if:
“proceeding with the complaint … would not further the purposes of this Code”.
The respondent must show that the parties settled the complaint.
Settlement can meet the purposes of the Human Rights Code.
The complainant needs to show why it doesn’t.
Section 3 of the Human Rights Code sets out the purposes. The purposes include:
- preventing discrimination
- providing remedies for discrimination
- promoting a society where everyone can fully take part.
The parties settle a complaint when:
- the respondent agrees to take steps to address the complaint
- in exchange, the complainant agrees to end the complaint.
Often, the complainant agrees not to seek any other remedy. The legal term is “release from liability”.
The Tribunal will read the agreement to see if the parties meant to settle the issues in the complaint.
The Tribunal will also consider why it should not hold the parties to the agreement.
- Did the complainant lack the mental capacity to agree?
- Was there unequal bargaining power and a very unfair settlement?
- Was the complainant forced to sign? Did they sign “under duress”?
Note about “force” and “under duress”: Another word for force is “coerce”. To sign “under duress” means signing because of a threat or other circumstances. It does not include stress. It does not include feeling unhappy after signing.
The Tribunal will consider the circumstances. This includes whether the complainant got independent legal advice.
“The parties settled the complaint. I attach the settlement agreement (affidavit, exhibit 1).
I rely on Thompson v. Providence Health Care, 2003 BCHRT 58 at para. 46.
This is a valid settlement agreement. It settles the complaint: see paragraphs 3-4 of the agreement.”
“Going ahead will not further the Code’s purposes. I signed the agreement. But it would be unfair to dismiss the complaint.
My case is like The Employee v. The Company and the Owner, 2017 BCHRT 266.
My complaint is about racial harassment for 3 years. I am 21 years old and new to Canada. I needed the job to stay in Canada. One day I broke down at work. I said I could not take the harassment any more. The employer said he’d pay me $100. He said I had to sign right away. I did. I needed to send the money home to my parents. My complaint sets out the details of the harassment. A fair award would be at least $10,000. Plus, this employer needs to do something about racism in the workplace.”