The Fallout Of Forced Settlements And Forced Resolutions In Alberta Human Rights

The Alberta Human Rights Commission (“AHRC”) has fought an uphill battle to resolve complaints in a timely fashion. There are a lot of complaints and there are finite judicial resources to process them.

This undesirable situation has led the AHRC to adopt case-reduction strategies to dismiss weaker complaints and to push the parties to resolve the rest prior to hearings where possible.

These strategies might be reducing the caseload, but I think they are tantamount to a forced – and I would argue sometimes unfair – resolution of complaints.  In essence, I question whether the cure is worse than the disease.

AHRC’s Strategies To Reduce Caseload

The largest of the AHRC’s case-reduction strategies is surely their case screening function.  With this tool, the Director can dismiss a complaint early on for having “no reasonable prospect of success” before the complaint is advanced along the complaint process to the Alberta Human Rights Tribunal (the “Tribunal”). The screening function can end a complaint without a hearing in circumstances where the complaint is considered too weak to proceed.  The AHRC has at times interpreted its power to dismiss complaints very broadly.  However, in recent years the Court of King’s Bench has reigned this power in somewhat, so it is not the focus of this article.

Another case-reduction strategy gaining popularity is for the Tribunal to enforce settlements stated to be reached at Tribunal Dispute Resolution (“TDR”) conferences.  In these cases, the parties have generally reached a verbal understanding at a TDR, but the complainant has decided (for whatever reason) they don’t want to sign the settlement paperwork.  The Tribunal will sometimes impose specific settlement terms or releases provided by the respondent on the basis that they are “reasonable”. This case-reduction strategy is a focal point of this article, and I’ll refer to the relevant cases as the “Forced Settlements” cases.

A further related strategy is for the Tribunal to dismiss complaints where the complainant has refused a “reasonable” settlement offer.  In these cases, the respondent will normally offer a cash settlement in exchange for withdrawal of the complaint and a specific form of release they’ve provided, and if the complainant refuses it, the respondent will ask for their complaint to be dismissed.  This case-reduction strategy is similar to the Forced Settlements, in that specific forms of release proposed by respondents are being deemed reasonable by the Tribunal.  The Tribunal has dismissed claims on this basis several times, and it appears to be happening more frequently of late.  This case-reduction strategy is a focal point of this article, and I’ll refer to the relevant cases as the “Forced Resolutions” cases.

The content of this article is an extension of a prior related article I wrote called The Havoc of the “Standard” Release in Employment Law and Human Rights, but the focus and most content is new.

Do Terms of Release Matter?

At the outset, I want to point out that the terms of settlement releases are clearly important.  The AHRC has acknowledged this on a number of occasions, but for our purposes a recent example should suffice.

In Janvier v Imagine Health Centres Ltd., the complainant had signed a release after her employment was terminated.  After that, she commenced a human rights claim against her former employer for discrimination in employment related to ancestry, colour, place of origin and race.  Her former employer tried to have her claim dismissed because she already signed a release. 

The AHRC considered whether the release effectively prevented the human rights complaint from proceeding, and found that it did not – the wording was not clear enough.  Part of the AHRC’s summary of the relevant legal principles was as follows:

For the purposes of this article, keep in mind those two points: (1) the language of a release is important, and (2) whether the complainant had legal advice is important.

Forced Settlements Cases

In Therien v Arbor Medical Services Inc., Patenaude v HMK Alberta (Service Alberta), and Desta v Schnitzer Steel, self-represented complainant employees came to verbal settlements of their human rights complaints with their former employers during TDR with members of the AHRC present in each case.  In these cases, the actual settlement paperwork and the release were not prepared until after the TDR’s.  Each time, the complainant refused to sign proposed paperwork afterwards.  In Patenaude it was because the release was generally “too broad”; in Desta it was because the employee wanted to retain the ability to pursue a trespass claim.  In all three cases, specific forms of release were imposed by the Tribunal, with consequences that the complaints were dismissed, and if the relevant complainant wanted the settlement funds they were required to sign those specific releases.  The specific releases and precise terms imposed by the Tribunal were not disclosed in these decisions.

Forced Resolutions: Refusing Fair and Reasonable Settlement Offers

Section 21(3) of the Alberta Human Rights Act gives the Director of the AHRC the power to dismiss a complaint where the complainant has refused a fair and reasonable settlement offer.  This is a significant power because, like the screening function, it is being done at the Director-level before a complaint is even referred to the Tribunal for processing towards a hearing.  These Director-level decisions are not usually published.

But the Tribunal itself also dismisses complaints on this basis, and these decisions are usually published.

The current leading authority on the Tribunal’s power to dismiss a complaint for refusing a reasonable settlement offer appears to be Okeke v Calgary Police Service, which built upon some of the AHRC’s prior authorities. 

In Okeke the Tribunal explained it has some statutory powers that are related to the Director’s express rights to dismiss complaints for refusal to accept a fair and reasonable offer. For instance, section 20.4(w) of the Bylaws allows the Tribunal to take any action in respect of a complaint it considers appropriate, and Section 24 indicates that efforts to reach fair and reasonable settlements continue beyond referral to Tribunal.  The Tribunal used these and other sections to conclude that it had the same power as the Director to dismiss complaints due to refused offers.

In Okeke, the Tribunal explained that its mandate was to prioritize resolution of complaints on “fair terms”.  The respondent has the onus of demonstrating an offer is fair and reasonable.  Determining fairness includes consideration of the public interest and the impact of discrimination on the complainant.  The test applied by the Tribunal is stated in Okeke as follows:

• The Chief can consider the merits of the case in determining what is fair and reasonable in the circumstances.
• The Chief can assess the respective risks of the parties in determining whether a proposed settlement offer is fair and reasonable.
• There is a range of fair and reasonable settlement offers.
• To be reasonable, an offer does not have to include all the remedies the complainant is seeking or include the highest award a complainant may be awarded at the Tribunal.
• It is normal in settlements for the parties to agree to resolve the dispute without either party admitting wrongdoing or liability.
• It is not unreasonable to have the matter concluded finally by seeking a full and final release.
• A non-disparagement clause may be reasonable in a fair and reasonable settlement offer, depending on the circumstances.

In Okeke, the complainant alleged discrimination on the basis of gender when she was denied a sanitary napkin while being detained by police.  The complaint was dismissed because the complainant refused a settlement offer of $15,000 in exchange for a release of any claims arising from her allegations of gender-based discrimination arising out of the incident.  The proposed release was clear it would not prejudice the complainant in respect of a separate Civil Claim she had filed against respondent.  It does not appear there were any other disputed terms in the proposed release.

In Pitstra v Flint Integrated Services Inc., the self-represented complainant alleged physical and mental disability discrimination when his employment was terminated after absenteeism and a work incident alleged to be connected to his disability.  The respondent made an offer of $7,500 in general damages and $7,500 in lost wages, in exchange for a release containing a confidentiality clause.  The complainant refused the offer for several reasons, including that he did not agree with the requirement of a release and confidentiality clause.  The Tribunal found the monetary amount of the offer was reasonable.  The Tribunal also noted: “… parties… will seek to have the matter conclusively and finally ended, and so will seek a full and final release.  I acknowledge that there may be cases where the norm is not followed, but I don’t see anything in this case which would take it out of the ordinary course.”  The complaint was dismissed for refusal to accept a fair and reasonable offer.  The case does not contain further analysis of why the release and its specific terms were considered fair and reasonable.

In Complainant v Respondent, the self-represented complainant alleged discrimination against a store owner when she was told to leave the premises due to the presence of her service dog.  The respondent offered her a settlement of $10,000 in exchange for a full release and withdrawal of her complaint.  She refused the offer the same day, stating she understood the risk but she wanted an apology and did not want to sign the release proposed by the respondent.  The release at issue was a full release of claims.  The Tribunal concluded the monetary portion of the offer was reasonable.  The Tribunal noted as follows respecting the proposed release: “…the fact that the offer required the complainant to give a full and final release is typical of a settlement and does not make it unfair or unreasonable.”  The decision does not otherwise describe the release or explain why its specific terms were reasonable.  The complaint was dismissed for the failure to accept the offer. 

In CS v Respondent, the Tribunal considered an offer to settle a physical disability discrimination complaint where a teacher resigned her employment, alleging a failure to accommodate her disability.  The employer offered $4,000 in lost wages, $4,000 in general damages, an apology letter and a letter of reference, all in exchange for a release containing a non-disclosure term.  The self-represented complainant refused the offer due to the non-disclosure conditions it contained, but apparently did not take issue with the rest of the release.  The Tribunal dismissed the complaint for failure to accept a fair and reasonable settlement offer, noting that “the non-disclosure terms to which she objects are fair and reasonable.”  Other than this general statement, the decision does not otherwise describe the release or why its terms were considered fair and reasonable.

In Cunningham v 2001426 Alberta Ltd. o/a Ultimate Tradesmen Edmonton, the human rights complaint related to color, gender, race, and religious beliefs in employment, stemming from alleged comments made to her at work and alleged inadequate response by the employer.   The employer made an offer to settle the complaint for $5,000 in general damages plus completion of the AHRC’s Human Rights in the Workplace seminar, all in exchange for a release.  The proposed release included terms of no admission of liability, non-disclosure and non-disparagement.  The self-represented complainant rejected the offer.  The Tribunal noted the conduct complained of was serious and many cases with similar allegations resulted in “materially higher” damages awards than the proposed settlement.  The Tribunal found the respondent had not demonstrated the offer was fair and reasonable, without getting to consideration of whether the terms of the proposed release were fair. The complaint was not dismissed.

In Silva v Stock Transportation Ltd., a complainant had filed an employment discrimination complaint against her employer, a bus driver operator.  She alleged discrimination because after she disclosed some physical and mental limitations, her employer did not allow her to continue her training.

The employer made an offer to settle the human rights complaint, which included (1) $10,000 in general damages, (2) Someone from the employer would attend the training programs offered by the AHRC, and (3) In exchange, the complainant would sign the AHRC’s Standard Memorandum of Agreement and a Release.

The Tribunal considered what the potential award range would be if the complainant were successful at a hearing, and determined that $10,000 was within that range.  The Tribunal also gave weight to the human rights training included in the offer. 

The Tribunal considered the offer overall, and considered whether the requirement for the complainant to sign the AHRC’s Standard Memorandum of Agreement and a Release was reasonable.  The Tribunal concluded that the offer was reasonable, with the following being some of the pertinent reasoning:

The actual terms of the AHRC’s Standard Memorandum of Agreement and the proposed Release are not described in Silva.  Also, apart from comments about releases and confidentiality clauses being appropriate in settlements generally, there is no discussion of why the specific terms were fair and reasonable in that case.

Forcing Settlements and Resolution of Complaints: Summary and Commentary

All the cases summarized in the Forced Settlements and Forced Resolutions sections above involve self-represented complainants without private legal counsel.

The Forced Settlements cases all involved general agreements to settle that were reached before the complainants had actually seen the proposed release documents.

The Forced Resolutions cases employed the test enumerated in Okeke (or similar prior authorities) in their consideration of whether to dismiss complaints for refusal to accept offers.  These cases weighed the monetary and non-monetary benefits of the offers to the complainants against the awards in cases with similar allegations.  This part of the reasoning might be controversial, but it is obviously necessary to evaluate fairness and does seem to line up with Okeke and prior authorities.

However, Okeke is also clear that the onus is on the respondent to establish that the offer refused was clearly fair and reasonable.  The releases and their terms are important parts of those offers.  Indeed, in Okeke the release terms were actually considered to determine if the employer had established they were fair and reasonable.  Part of why the release in Okeke was considered fair and reasonable was that it contained a carveout which allowed the complainant to continue with a separate Civil Claim. 

In Complainant, Pitstra, CS, and Cunningham, the complainants had issue with signing the releases.  In Pitstra, CS, and Cunningham, the complainants took issue with the confidentiality or non-disclosure terms proposed.  In Cunningham, the monetary amount offered was not considered reasonable, and there was no discussion of whether the release proposed was reasonable.  In Complainant, Pitstra and CS, the concerns with the proposed releases and clauses were brushed aside on the basis that it is normal for a settling party to want a full release.  There is scant analysis on why these releases were considered to be fair and reasonable in those cases.

Similarly, the complainant in Desta had a release imposed on him despite his objection that he had a separate trespass claim he wanted to pursue civilly that might be prevented by the settlement.  It is unclear to me why this would not be a valid objection. 

There are no details in Silva about what the AHRC’s “Standard Memorandum of Agreement” or the Release in that case contain.

After Silva came out, I looked for the AHRC’s “Standard Memorandum of Agreement” online.  I was not able to locate it, so I publicly messaged the AHRC on linkedin asking where it could be found online.  The response was that it is not a public document.

Unfortunately, the nuanced analysis of the release terms in Okeke seems to be the exception, not the rule.  The other cases don’t seem to give any serious consideration to the terms of the releases.  That would be problematic on its own, but I would argue the reasoning suggests they’ve gone even further and have actually shifted the onus on to the complainant to prove the releases are not reasonable.

Who Cares About NDA and Non-Disparagement?

Most proposed releases contain non-disclosure agreements (“NDAs”) and non-disparagement clauses.

Almost everyone affected by an NDA cares about the rights they are being asked to give up.  These agreements can prevent someone from being able to speak openly and honestly about their experiences or something that happened to them.  It also prevents the public from hearing about these experiences.

Almost everyone affected by a non-disparagement clause cares about that, too.

Like NDAs, these clauses can prevent someone from being able to speak about their experiences.  These clauses generally require that the individual cannot say anything negative about their prior employer, even if its true.  They are also usually not confined to the dispute being settled.

The effect of NDAs and non-disparagement clauses is that in many cases, the victim of harm is prevented forever from telling their story.  This is not insignificant.  The potential impact of NDA’s on public discourse has even led to serious discussion of banning them in many contexts.

To be clear, I am not an advocate for banning NDAs and non-disparagement clauses.  I think these can be valuable tools in facilitating settlements for real victims without forcing the parties through an adversarial process that can be harmful to all parties.  However, the fact that some respected commentators think they should be banned speaks to their significance as settlement terms.  At the very least, the surrendering of these rights by a complainant should be seen to have real value.

I think many of the Tribunal decisions summarized in this article demonstrate that the Tribunal does not usually place any value on the substantial rights complainants are surrendering when they sign a broad release.

Transparency in Forced Settlements and Forced Resolutions

Transparency is an important cornerstone of the Canadian justice system.  It’s never perfect, and there are many exceptions, but its well accepted as something we should aspire to. 

The AHRC furthers the aims of transparency in a number of important ways.  First, there is no doubt that the AHRC makes an effort to educate the public and raise awareness about human rights in this public.  This effort is extensive, and includes training seminars offered by the AHRC to employers.  I think this effort furthers the goal of transparency by making sure employers and other businesses know what their obligations are.

The Tribunal has also explicitly acknowledged the significant value of transparency of justice in publications and its written decisions.  The following is a quote from the AHRT Practice Direction published online (as of June 16, 2026) entitled “Requests for Anonymization of Tribunal Decisions”:  

In considering other requests for anonymization, the Tribunal must balance the public interest in an open and transparent administrative system with the individual’s need for privacy. The individual’s interest will only override the public interest to an open decision-making process where fairness requires it or where significant privacy interests arise. (See Gabow v Bird Construction Company Inc., 2020 AHRC 12)

Usually, the following reasons will not be sufficient to support anonymization:

• The fact that a complainant has a protected characteristic
• Concerns about a future negative impact from the release of a decision (for example, future employment prospects)

I think transparency is somewhat lacking in the Forced Settlement and Forced Resolutions cases I’ve summarized in this article because either (1) the actual terms of the releases were not considered to evaluate fairness, or (2) they were considered to some degree, but that analysis is absent or minimal in the decisions.  Silva is the most striking example, where the Tribunal appears to have considered its own “Standard Agreement” and a Release to be fair and reasonable, but the terms of those documents are not specified and copies of those documents have not been made publicly available.

Without transparent analysis on the terms of releases in the circumstances of each case and why they are fair (or not), complainants and lawyers can only guess what the Tribunal will consider to be fair and reasonable in their own cases.

Should the Tribunal Impose Broad Releases?

The AHRC is a specialized tribunal.  Our courts give significant weight to the decisions of specialized tribunals, only interfering with them when they are unreasonable.  Courts will also interfere if a specialized tribunal makes an incorrect conclusion on the scope of its decision making authority.

The AHRC primarily gets its jurisdiction from the Alberta Human Rights Act.  In basic terms, the AHRC has jurisdiction to hear complaints about human rights and discrimination.  This covers Alberta workplaces, membership in trade unions, advertisements, services available to the public, and more.

The AHRC also has the power to order remedies in an effort to cure human rights wrongs.  This includes monetary compensation for things like lost wages, general damages for pain and suffering, and ordering parties to undergo human rights training.

However, there are many kinds of claims the AHRC does not have jurisdiction to consider.  This includes employment standards complaints, OH&S complaints, wrongful dismissal severance claims, most property claims, and many others.

A typical “full release” proposed by an employer will cover employment standards complaints, OH&S complaints, severance claims, and just about anything else you can imagine. 

How can the AHRC fairly determine that a specific release covering matters beyond the instant human rights complaint is “fair and reasonable” as part of a settlement, without first canvassing all other possible claims and weighing their merits? 

I have significant difficulty accepting that they can. 

I would argue that the Tribunal does not even have jurisdiction to determine the reasonableness of the term of a release unless the terms of that release are confined to the human rights issues being canvassed by the Tribunal.

Conclusion

This article is not intended as an attack on the AHRC.  The intention is to persuade any interested party that the forced resolution strategies being employed to improve access to justice may in some cases be impairing it.    

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.