In Silva v Stock Transportation Ltd., 2026 AHRC 60, the AHRC dismissed a section 7 human rights complaint after the complainant rejected what the Tribunal found was a Fair and Reasonable settlement offer.
This case is important because it is a growing trend for the AHRT to dismiss cases on this basis.
Facts
The following were the pertinent facts summarized by the AHRT:
- The complainant employee was a bus driver
- The complainant disclosed some physical and mental limitations, and her employer did not allow her to continue her training
- The complainant filed a human rights complaint, alleging discrimination
- The employer made an offer to settle the human rights complaint, which was that the complainant would receive $10,000 in general damages, employer representatives would attend AHRC training programs, and the complainant would sign the AHRC’s Standard Memorandum of Agreement and a Release
- The complainant rejected that offer
- The employer brought an application to have the human rights complaint dismissed for failure to accept a “fair and reasonable” settlement offer
- Note: AHRC’s Standard Memorandum of Agreement and a Release was not included in the decision, and I was unable to find a copy of this published online
Analysis / Conclusion
The AHRC 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 AHRC also gave weight to the human rights training included in the offer.
The AHRC 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 AHRC concluded that the offer was reasonable, with the following being some of the reasoning:
[35] Moreover, a fair and reasonable offer need not be the highest award a complainant may be awarded at the Tribunal. Neither does it have to include all the remedies sought by the complainant. Furthermore, the fact that the offer of settlement includes a release does not render the offer unfair or unreasonable. In B.M. v TCE, the Tribunal held that “a release and confidentiality provision are properly sought by a respondent as part of a settlement proposal” and that the inclusion of a release provision in the settlement offer does not make the settlement unfair or unreasonable.
[…]
[42] Overall, I find that the offer of settlement (consisting of $10,000 general damages and human rights training) is well within the reasonable range of the remedies the complainant may have been awarded had the Complaint been heard on the merits.
My Take
The AHRC has a huge caseload. Its not surprising to me that the AHRC looks for strategies to reduce that caseload. Dismissing complaints for refusal to accept offers is one such strategy the AHRC employs.
However, the AHRC seems to be ever more frequently taking the functional position that the terms of proposed releases don’t matter. To me, the reasoning in paragraph 42 of Silva is revelatory of the very low significance AHRC places on releases and their contents – the release is not even mentioned in that paragraph as part of that conclusion that the settlement was reasonable “overall”.
Most employees who have had the terms of a release explained to them think the terms matter quite a bit. Self-represented complainants do not always complain about each of the release terms that might be considered overbroad or unreasonable, but I believe this is due to a lack of understanding.
A broad release has a significant impact on the rights of a complainant that go far beyond the dispute being considered by the AHRC. These releases will often wipe out unpaid compensation, severance, health and disability coverage and other known or unknown claims that could be raised in other forums.
I would add as an additional note that 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.
That document was found to be part of a “fair and reasonable” settlement, as part of this summarized decision to dismiss a complaint. I think it would serve the interests of transparency if it were made public.
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