Hamel v. Canadian Mental Health Association, 2025 BCHRT 21
Date Issued: January 31, 2025
File(s): CS-002749
Indexed as: Hamel v. Canadian Mental Health Association, 2025 BCHRT 21
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:
Sally Hamel
COMPLAINANT
AND:
Canadian Mental Health Association
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Sections 27(1)(d)(ii)
Tribunal Member: Laila Said Alam
On their own behalf: Sally Hamel
Counsel for the Respondent: David Dahlgren
I INTRODUCTION
[1] Sally Hamel worked as a Vocational Rehabilitation Counsellor with Canadian Mental Health Association, Vancouver-Fraser Branch [ CMHA ]. Ms. Hamel says her manager unilaterally placed her on unpaid leave, because her physical disability prevented her from working with patients in the hospital during the Covid-19 pandemic. She says her co-workers had not seen patients in person, but their employment status was not similarly impacted. Ms. Hamel says CMHA treated her differently because of her age and disability, contrary to s. 13 of the Human Rights Code .
[2] CMHA denies discriminating. The Respondents seek to dismiss the complaint under s. 27(1)(c) because there is no reasonable prospect the complaint will succeed, and under s. 27(1)(d)(ii) because the parties have entered into a valid settlement agreement. CMHA says it would not further the purposes of the Code to proceed with the complaint in the face of a binding settlement agreement.
[3] Ms. Hamel does not dispute she entered into a settlement agreement with CMHA, and she understood the implications of the agreement. She says the complaint should proceed regardless for policy reasons. First, the nature of her complaint is serious and, second, CMHA withheld critical information from her when it presented the settlement agreement. The only issue I need to consider is whether Ms. Hamel has identified factors that would weigh against dismissing the complaint in the face of an agreement that expressly purported to resolve it.
[4] For the following reasons, I am persuaded that the release which Ms. Hamel signed applies to this human rights complaint and that, in all the circumstances, the purposes of the Code would not be furthered by allowing the complaint to proceed. It is dismissed under s. 27(1)(d)(ii) of the Code . To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[5] Ms. Hamel worked as a Vocational Rehabilitation Counsellor with CMHA. She worked there for nearly 9 years at the time of filing her complaint, with plans to retire within the next 1 and a half years.
[6] Ms. Hamel says she has a heart condition that prevented her from seeing patients in person during the Covid-19 pandemic. For that reason, she worked from home for 5 months beginning March 19, 2020.
[7] On August 24, 2020, Ms. Hamel’s manager sent an email to several employees stating that the HR Manager advised him that Ms. Hamel had filed for extended time off. Ms. Hamel learned about the email the same day. She contacted the HR manager because she had not filed for extended time off. Her union also wrote to the HR manager to notify him:
… if her specialist continues to recommend [Sally work from home], the Union supports her…Many places are doing this for members, regardless if they have a medical situation or not. When the time does come to return to the workplace, [the Union, and Joint Occupational Health and Safety Committee], will work with everyone to ensure there is a safe work environment.
[8] The following day, the HR manager emailed Ms. Hamel and her union to confirm that he spoke with Ms. Hamel’s manager and Ms. Hamel had not requested a leave. The email further stated:
CMHA will determine and provide a date by which Sally and all other Vocational Rehabilitation Counsellors are required to provide services at the worksite. In the meantime, Sally should continue to work with EDMP to determine accommodations required for her individual circumstances. Any medical information should be forwarded as soon as possible.
[9] On September 2, 2020, the HR manager emailed the union. He said that CMHA would put Ms. Hamel on unpaid, Covid-19 leave, beginning September 8. The union requested CMHA’s written directive that Ms. Hamel could not be accommodated any further.
[10] There is no evidence before me about the communications between Ms. Hamel, the union, and CMHA between September 3, 2020, and November 30, 2020.
[11] On November 15, 2020, there was a fire at Burnaby Hospital. The CMHA unit closed due to the fire damage. As of May 2021, it had yet to be rebuilt and remained closed.
[12] On December 1, 2020, the Union sent CMHA a settlement proposal on Ms. Hamel’s behalf.
[13] On December 4, 2020, CMHA made a counteroffer to the union. Later that day, Ms. Hamel filed her complaint with the human rights tribunal and sent it to the Respondent by email.
[14] On December 10, 2020, the Union sent CMHA another settlement proposal on Ms. Hamel’s behalf.
[15] The Union sent another settlement proposal on December 22, 2020.
[16] On January 15, 2021, CMHA circulated the “final draft of the settlement.”
[17] On January 24, 2024, Ms. Hamel signed a document titled “Exit Agreement”. This is the settlement agreement at issue in this application. It includes the following provision:
The Grievor hereby releases the Employer from any liability with respect to any claims (grievances, actions, disputes, complaints, etc.) which have arisen or may arise regarding the Grievor’s employment, including any claims or potential claims arising under the BC Employment Standards Act , the BC Labour Relations Code , the BC Human Rights Code , other statues, or at common law.
III DECISION
[18] The Tribunal may dismiss a complaint under s. 27(1)(d)(ii) where the parties have settled the complaint. While a settlement agreement does not deprive the Tribunal of jurisdiction over a complaint, there is a strong public interest in honouring settlement agreements: Thompson v. Providence Health Care , 2003 BCHRT 58 at para. 38. There are also situations, however, where the terms of the settlement or the conditions under which it was reached run counter to the purposes of the Code : Edwards v. Cowichan Valley Regional District , 2018 BCHRT 172 at para. 35; Thompson at paras. 39-46; The Employee v. The Company and the Owner , 2017 BCHRT 266 at para. 35.
[19] There is no dispute that the parties settled the complaint. Ms. Hamel’s response to the application to dismiss states, “I have always been clear that I did sign a settlement agreement and understand the implications of that agreement.”
[20] There is strong policy rationale for holding people to their agreements. Among other things, as the Tribunal said at para. 15 in Nguyen v. Prince Rupert School District No. 52 , 2004 BCHRT 20:
When parties are able to resolve human rights disputes by way of a settlement agreement, considerable public and private resources may be saved. They may be able to resolve the complaint more expeditiously than would a formal hearing process. The parties may also be able to craft a resolution which more closely matches their needs and interests than would a decision of the Tribunal. Finally, the mediation process itself may be better for the parties’ relationship than a formal hearing. For all of these reasons, the Tribunal encourages and assists parties in attempting to resolve complaints
[21] At the same time, as asserted by the Tribunal in Thompson v. Providence Health Care , 2003 BCHRT 58 [ Thompson ] at para. 38, “[t]he 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”. Parties cannot contract out of their rights under the Code : Insurance Corporation of British Columbia v. Heerspink , [1982] 2 SCR 145 at 158; The Employee v. The Company and the Owner , 2017 BCHRT 266 at para. 27.
[22] The burden is on the person seeking to pursue their complaint in the face of an agreement to persuade the Tribunal that the purposes of the Code are best served by allowing the complaint to proceed: Thompson at para. 46 . In this case, it means that Ms. Hamel bears the burden of persuading me that her complaint should be allowed to proceed in the face of an agreement that expressly purported to resolve it.
[23] I now turn to whether Ms. Hamel has identified factors that would weigh against dismissing the complaint. Relevant factors may include:
a. the language of the release;
b. whether the complainant understood the significance of the release;
c. whether the complainant understood their rights under the Code , including whether they had independent legal advice;
d. whether the complainant felt they had no choice but to agree because of issues like timing and financial need;
e. whether the respondent improperly coerced the complainant to consent;
f. whether there was an inequality of bargaining power;
g. whether the settlement was substantially unfair, including, for example, whether the complainant received little or no consideration for the release beyond statutory entitlements under employment standards legislation; and
h. the seriousness of the complaint and what is at stake for the complainant.
Thompson at paras. 41-44, citing Chow (Re) , 1999 ABQB 1026 and Pritchard v. Ontario (Human Rights Commission) (No. 1), 1999 CanLII 15058 (ON SCDC); Gerard v. Olive’s Market Whistler and others, 2015 BCHRT 102 at para. 17
[24] Ms. Hamel says the complaint should proceed in the face of the settlement agreement because she was removed from her position without notice even though she had a letter documenting a medical condition that required that she work from home. I understand her argument to be that because of the nature of her complaint it should proceed despite the settlement agreement.
[25] I do not agree that the allegations in Ms. Hamel’s complaint warrant allowing the complaint to proceed. Any allegation of disability-based or age-based discrimination in employment is serious. Here, I find it significant that she had the benefit of union representation while negotiating the settlement and release. She also filed the complaint at the beginning of the negotiations, immediately after CMHA suggested they would counter her initial settlement proposal. Multiple offers, counteroffers, and conversations took place between the time of filing her complaint and signing the Exit Agreement. I am satisfied that Ms. Hamel had the opportunity to make an informed decision about the best way to resolve the dispute with her employer and she chose to enter into the settlement agreement.
[26] Ms. Hamel also says the complaint should proceed because CMHA withheld critical information from her when it presented the settlement agreement. Specifically, that her co-workers at the hospital were working from home due to a fire onsite, and the person hired to replace her was given the option to work from home even after the other workers had returned to the hospital. She says she only became aware of this after signing the Exit Agreement. She said she would not have signed the Exit Agreement if she had known there may have been a possibility she could continue to work from home. She believes the Exit Agreement was not presented in good faith. Ms. Hamel says because CMHA entered the Exit Agreement in bad faith, it best serves the purposes of the Code to allow her complaint to proceed.
[27] Ms. Hamel cites The Employee v. The Company and the Owner , 2017 BCHRT 266 as support for her position. However, she does not explain how it is helpful to her position. That complaint involved an allegation of sexual harassment in employment. The complaint was allowed to proceed because the circumstances surrounding the negotiation of the settlement agreement weighed heavily in favour of allowing the complaint to proceed. Those circumstances included a large power differential between the parties, the complainant hadn’t received proper advice about the significance of signing the release, and the agreement was substantially unfair. That is not the case here.
[28] The whole of the materials before me do not bear out Ms. Hamel’s position. In particular, Ms. Hamel was represented by her union. The fire destroyed the unit and then the union initiated settlement discussions; there is no evidence before me to suggest Ms. Hamel did not participate willingly in those discussions. Multiple offers and counteroffers were exchanged over a month. I agree with CMHA that Ms. Hamel had sophisticated representatives through her union, and that the Union would presumably have been very knowledgeable at the time about CMHA’s operations, facilities and unionized workforce. The ultimate settlement agreement was fair, and very close to the union’s December 22, 2020, proposed settlement. Ms. Hamel has not persuaded me that allegedly not knowing that there had been a fire taints the settlement such that it is can now be viewed as unconscionable, or that there was undue influence or duress. Ms. Hamel’s assertion that CMHA withheld critical information when it presented the settlement agreement is not enough to set aside the agreement for the purpose of Ms. Hamel being permitted to pursue her human rights complaint.
[29] I am persuaded that the parties settled this complaint, that the terms and circumstances surrounding the settlement were not contrary to the purposes of the Code , and that in the face of that settlement it would not further the purposes of the Code to permit Ms. Hamel to proceed with her complaint.
IV CONCLUSION
[30] The Application to dismiss the complaint is granted. The Complaint is dismissed under s. 27(1)(d)(ii).
Laila Said Alam
Tribunal Member