Stansens v. Liquor Control Board of Ontario, 2009 HRTO 1560

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Stansens

Applicant

-and-

Liquor Control Board of Ontario

Respondent

DECISION

Adjudicator: Sherry Liang

Date: September 25, 2009

Citation: 2009 HRTO 1560

Indexed as: Stansens v. Liquor Control Board of Ontario

APPEARANCES:

John Stansens, Applicant ) On his own behalf

Liquor Control Board of Ontario, )

Respondent ) Michael Torrence, Counsel

1This is an Application filed on February 26, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application alleges discrimination in the workplace, arising out of events that occurred between late 1992 and March 2006. In March 2006, the applicant accepted a separation package from his employer, the Liquor Control Board of Ontario (“LCBO”). He signed a letter accepting the terms of the package, as well as a Full and Final Release.

3The LCBO has asked for early dismissal of this Application, on two bases. They rely on the Release signed by the applicant. As well, given the time period covered by the Application, the LCBO maintains that it is made beyond the one-year limitation period established under the Code.

4The Tribunal received written submissions from the parties, and convened a conference call hearing on September 14, 2009, to hear oral submissions. On review of the material before me and the submissions made at the conference call hearing, I am satisfied that this Application may not proceed.

FULL AND FINAL RELEASE

5The applicant alleges, among other things, that he had a disability arising out of work that required accommodation in the workplace, and that the LCBO did not appropriately accommodate him. He alleges that, prior to 2006, he made numerous complaints internally about the manner in which he was treated, including complaints to the LCBO diversity manager that his human rights were being infringed.

6In early 2006, the applicant was advised that his position would be declared surplus. At a meeting on March 1, he was offered two options, one of which was to transfer to another location of the LCBO. The second option was to take a separation package under which the LCBO would pay him full salary until the fall of 2006, allowing him to bridge to early retirement. He would also be paid a lump sum severance payment and accrued vacation and other leave credits. The applicant states that the first option was unacceptable, as it would add considerably to his daily commute. At the time, he lived in Whitby and worked at a store in Whitby. The new location would require him to travel to Pickering.

7The applicant advised the LCBO by email on March 3 that he would accept the second option. He indicates that he discussed the matter with family and friends and decided it was in his best interests to accept the proposal for early retirement. The offer was then put in writing by the LCBO in a letter presented to the applicant during a further meeting on March 7, 2006. The applicant was given the letter and the accompanying Full and Final Release to consider and sign and return to the LCBO if he accepted the offer. The letter advises the applicant to obtain whatever advice he feels is necessary prior to making his decision.

8Although the letter asks the applicant to return the letter and Release to the LCBO within ten days, the applicant states that he was told he should make his decision as soon as possible, as the Ontario Pension Board (the “Board”) would then have to be advised of his intentions to retire. At the time, the Board permitted retirement under a Factor 80 program, under which employees who were declared surplus by March 31, 2006, were able to retire on an unreduced pension.

9During oral submissions, the applicant states that after the meeting of March 7, he considered consulting with legal counsel but decided against it, partly because of the cost and partly because he felt he had no other option but to accept the offer in any event. He stated that he had access to a lawyer, who did not have time. The applicant states that he understood the terms of the Release, albeit not every word, and that he felt that as he was simply retiring, it was not a matter for which he needed legal advice.

10Among the terms of the Release are provisions releasing the LCBO from any actions or complaints arising out of his employment with the LCBO or the termination of employment. The Release also contains a provision stating that the applicant agrees not to commence or maintain any action or proceeding, including any claims under the Code. The Release states that the applicant agrees that it will act as a complete bar to any such claim. The Release also requires the applicant to keep the terms of the settlement confidential. A further provision states that a breach of any of the provisions of the Release shall void the settlement and states that “the LCBO or Releasees can then resort to whatever legal remedy it so desires.”

11The applicant’s position is that the Release should not bar him from pursuing this Application, because he felt he had no other option than to accept the proposal. He stated in his oral submissions that “no other sensible choice” was given to him. If he had not accepted, he would have been transferred to Pickering, resulting in a longer commute that he felt would be harmful to his health. He stated that he was not in a financial position to quit his job and wait until age 65 to receive his pension (he was 48 years old at the time). He also believes there were other options available to bridge him to retirement that were not made known to him. Although he agrees that the proposal provided him with bridging to enable him to reach the Factor 80 by the fall of 2006, he views the benefit received as an “entitlement” and not a “gift”.

12The applicant also believes that the LCBO acted in bad faith in presenting him with the Release on March 7, instead of at the initial meeting of March 1.

13Further, the applicant does not believe that any Release should operate to prevent an individual from bringing a human rights claim.

14In other cases before the Tribunal, applicants have been barred from pursuing an Application under the Code because of the terms of a release. The respondent has referred to some of these decisions in its written materials, including Dube v. Rockhaven Recovery, 2009 HRTO 53, Sinnett v. Orlick Industries, 2009 HRTO 916, and Munro v. Halton Condominium Corporation No. 77, 2009 HRTO 97. The Tribunal has stated that economic pressure alone is not sufficient to set aside the terms of a release. Parties entering into settlement agreements generally face a variety of pressures but, absent extraordinary circumstances such as those that amount to duress or coercion, they will be held to the terms of their settlements.

15In the circumstances here, the applicant was faced with an alternative (a transfer to another store location) that he felt was unsatisfactory, as it resulted in a longer commute. Whether or not that amounts to economic pressure, it does not constitute duress that would justify setting aside the terms of a release.

16Further, the fact that the applicant felt some time pressures in making his decision also does not justify setting aside the terms of the Release. He understood what he was signing and even considered and decided not to seek legal advice. He decided that the settlement was beneficial to him and chose to accept it. The fact that he also now believes that there may have been other options to bridge him to Factor 80 retirement does not nullify the fact that he chose to accept the settlement.

17There is no general principle that parties cannot, through signing a voluntary settlement, agree not to pursue a claim under the Code. At the time he accepted the settlement and agreed to take early retirement, the applicant had raised allegations of discrimination in the workplace to his employer. At the time of the settlement, he was still not satisfied with the LCBO’s response to his complaints. He could have chosen not to take the settlement and pursued those allegations further either internally, or through filing a complaint under the Code. By accepting the settlement and signing the Release, the applicant decided, as he had the right to do, that he would not pursue those matters and instead take early retirement under Factor 80. He received the salary continuance that enabled him to take advantage of a temporary early retirement scheme being offered through the Board. In all these circumstances, it would be unfair to allow the applicant to resile from the terms of the settlement.

18I am therefore satisfied that the applicant is precluded by the settlement and Release from pursuing this Application under the Code. It would be an abuse of process for the matter to proceed in these circumstances.

DELAY

19In any event, I am also satisfied that the events covered by the Application occurred more than a year before it was filed, and the applicant has not provided a reasonable explanation for the delay that leads to the conclusion that it was incurred in good faith.

20The applicant states that one factor in the delay in filing the Application was that he felt the Release contained threats of “legal reprisal” against him if he would to bring an Application under the Code. He suggests that although he wished to pursue his human rights claims, he “lived in fear” after he signed the Release. He refers specifically to a fear that he might lose his pension if he were to take such action, until he received “better info” from a friend. This does not provide a reasonable explanation for the delay. If the applicant had such concerns, he could have sought advice at any time following March 2006, to the date he filed his Application in February 2009, about the possibility of “legal reprisal” against him for bringing the Application.

21The applicant also states that he only found out about the one-year deadline in January 2009, when he saw that information on the internet. This is also not a reasonable explanation. On the applicant’s own materials, he believed that he suffered discrimination in the workplace from 1992 forward. He felt that the discrimination continued until 2006, when he left the employ of the LCBO. Even if the applicant felt that he ought to pursue internal workplace avenues to pursue his complaints of discrimination, following March 2006 he did not act diligently in obtaining information and advice on filing a complaint under the Code.

22The applicant refers to the fact that he is aware, through the media, of cases of discrimination and in particular sexual abuse, which are litigated decades after the events. He feels he should be treated similarly. This also does not provide a reasonable explanation for the delay. The applicant could have sought information and advice about the deadlines applicable to his circumstances, instead of relying on media reports about other unrelated cases.

23In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. It is not necessary for me to consider whether substantial prejudice would result from the delay.

24The Application is dismissed.