Gerri Hynes v. The CUMIS Group Limited, 2009 HRTO 1783

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerri Hynes Applicant

• and-

The CUMIS Group Limited Respondent

decision

Adjudicator: Ena Chadha

Date: October 27, 2009

Citation: 2009 HRTO 1783

Indexed as: Hynes v. CUMIS Group

APPEARANCES:

Gerri Hynes, Applicant ) On her own behalf

The CUMIS Group Limited, ) Bruce Pollack, Counsel Respondent )

INTRODUCTION

1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H-19, as amended, (the "Code"), alleging discrimination in employment on the basis of disability.

2The respondent did not file a full response to the Application. Rather, the respondent requested that the Application be dismissed because the applicant had signed a Full and Final Release with respect to the termination of the applicant's employment.

3The Tribunal received written submissions from the parties and convened a half day hearing on October 15, 2009 to hear oral submissions with respect to the respondent's request for early dismissal. The respondent called the evidence of Carol Scobie, the respondent's Vice-President of Employee Relations. The applicant testified on her own behalf.

4Having reviewed the parties' documentary materials and considered the evidence and the submissions tendered at the hearing, I am satisfied that this Application may not proceed.

BACKGROUND

5The applicant commenced employment with the respondent in May 2008 as a life insurance claims manager. On Thursday March 26, 2009, the applicant was informed at a meeting that her employment was terminated effective immediately. Present at the meeting were the applicant, her supervisor and Ms. Scobie. After notification of the dismissal, Ms. Scobie briefly met privately with the applicant in order to canvass the severance documentation, which included the respondent's offer of a financial separation package.

6The separation package offered the applicant the option of two potential severance plans (a lump sum payment or twelve week salary continuance), continuation of benefits (except for long term disability and out of country medical coverage) and six months of career transition services. The contents of the two options were detailed in a termination letter, which also attached a Full and Final Release ("Release"). The applicant was advised, that she had until April 9, 2009 to decide as to how she wished to proceed. After this discussion with Ms. Scobie, the applicant was introduced to and spoke with an outplacement counselor about career transition services.

7After the weekend, the applicant returned to the workplace in order to collect her personal belongings. This process was facilitated by Ms. Scobie. This occasion was the second and last in-person communication between the applicant and Ms. Scobie. The applicant acknowledged that she felt neither pressured on this occasion, nor during the March 26 termination meeting, to make any decision.

8On the morning of April 2, 2009, the applicant wrote an email message to Ms. Scobie. In this message, the applicant indicated that she was having "a difficult time making a choice". She stated that she was deeply upset about the job loss and the fact that the dismissal had occurred so soon after her sister's death (the applicant's sister had passed away the previous month), as well as the fact that she was experiencing significant pain because of her disability. The email message goes on to state "Carole, I don't know what to do. I've talked to lawyers and they say that the severance package is reasonable even if what happened is not." The applicant inquired if she could be placed on sick leave to give her more time to make a decision about which separation package to select. The applicant concluded the email message by asking Ms. Scobie for advice about her situation.

9Approximately one hour later, Ms. Scobie sent a response email to the applicant. In her message, Ms. Scobie notified the applicant that the respondent could not place the applicant on disability leave because this entitlement had expired as of the date of her dismissal. The email next outlined the two different severance options and explained that, while all benefits would terminate upon the acceptance of the lump sum payment, the applicant's employee assistance plan benefits would be maintained during the period of salary continuance. Ms. Scobie concluded the email message by urging the applicant to continue working with the outplacement counselor.

10Later that afternoon, the applicant replied to Ms. Scobie. In her reply email, the applicant stated:

Hi Carol,

Again I'm sorry I was so upset this morning. I have read over the offer about 10 times today and have weighed out the pros and cons of each plan. I have decided to opt for the salary continuance. It allows me the time I need to get myself back up and running with some flexibility and without all the tax and claw backs associated with the lump sum settlement. I have signed the documents and will drop them off at the front desk ...

As per her email, the applicant selected the salary continuance option and dropped off the signed Release at the respondent's office that evening.

11The second paragraph of the March 26 termination letter expressly noted that the severance package was only available to the applicant upon the execution of the attached Release. The Release included the following provisions:

...in consideration of the terms and conditions of the termination settlement outlined in CUMIS' letter dated March 26, 2009, the receipt and sufficiency of which is hereby acknowledged, [the applicant] releases and forever discharges CUMIS, without limiting the generality thereof, of all actions, causes of action, claims and demands arising from the employment of [the applicant] with CUMIS or the termination of the said employment.

...I have had the opportunity to seek independent legal advice with respect to the terms of settlement as well as this document and I fully understand them. I hereby voluntarily accept the said terms for the purpose of making full and final compromise, adjustment and settlement of all claims as aforesaid.

12The applicant acknowledges that, although she wrote in her first April 2 email that she had "talked to lawyers", this was in fact not true because she did not consult any lawyers. The applicant indicated that she made inquiries to obtain legal advice, but declined to pay the "exorbitant" $700 fee.

13On April 9, 2009, upon receipt of her salary continuance, the applicant again wrote to the respondent and inquired how her pay was calculated for the severance continuance because she apprehended an error in the amount. The respondent explained that the shortfall was due to the fact she was not paid for March 27, 2009, the date after the applicant was dismissed. Eventually, the respondent agreed to pay the applicant for March 27, 2009.

14The applicant filed the current Application on May 11, 2009. The applicant's salary continuance ceased on or about June 12, 2009. The applicant accessed career transition services until around the time she secured new employment near the end of June 2009.

SUBMISSIONS

15The applicant stated that when she executed the Release she was extremely distraught as a result of the dismissal, her poor health and the recent death of her sister. The applicant indicated that, while she understood that she was signing a Release, she did not understand that she was signing away her right to file a human rights complaint. The applicant submits that the Release should not operate to prevent her from pursuing her human rights. The applicant stated that she felt that she had no choice but to accept the severance package because she was experiencing tremendous financial strain because she was the primary earner in her marriage. The applicant submits that given her personal circumstances the respondent treated her unfairly.

16The respondent submits that the applicant was given two weeks to review and consider the respondent's offer; however, it was the applicant's own choice to enter into the agreement after only one week. The respondent points out that the applicant led the respondent to believe that she had consulted with legal counsel. The respondent suggests that the applicant was not naïve about her circumstances because she was well-educated holding both Bachelor and Masters degrees and having previously worked in human resources. The respondent further points out, that contrary to the applicant's submissions of financial strain, the applicant and her spouse lived in one household without children and that the applicant's spouse was employed. The respondent notes that there is no evidence of duress or undue pressure. The respondent submits that it had a reasonable expectation that the Release would bring finality to any employment/termination related dispute and that, in these circumstances, it would constitute an abuse of the Tribunal's process to proceed with the Application.

FULL AND FINAL RELEASE

17I am satisfied that the applicant is precluded by the Release from pursuing this Application and, in the circumstances, it would be an abuse of process for this matter to proceed. This Tribunal has held that filing a human rights Application after signing a full and final release can constitute an abuse of the Tribunal's process: see, for example Douse v. Hallmark Canada, 2009 HRTO 1254; Sinnett v. Orlick Industries, 2009 HRTO 916; Kailani v. Securitas Canada, 2009 HRTO 1183; and Dunn v. Sault Ste. Marie (City), 2008 HRTO 149. The applicant in Douse, supra, also sought to set aside a release on the grounds that he was distraught, under economic duress and did not understand what he was signing. The Tribunal accepted that the applicant was distraught and under economic duress but rejected the assertion that the applicant did not know what he was signing. In my view, the facts of the current case are not so dissimilar from the Douse case and the decisions cited by the respondent so as to warrant an application of different principles.

18I accept the applicant's evidence that she was distraught and I am sympathetic to her situation that she was unwell and recovering from her sister's death; however, I do not accept her evidence that she did not understand that she was releasing the respondent from all employment-related claims. She understood that she was entering into a severance agreement with the respondent and that in order to obtain the severance payment she was required to sign a fulsome Release. Although the applicant's first email indicates that she was feeling distress as a result of her personal circumstances, it is apparent from her second email that the applicant determined that the settlement was beneficial to her and chose to accept it. Her second email clearly states that she considered and reviewed all documents and evaluated the merits of the options and was prepared to sign off on the documentation. The fact that she now believes that the Release should not have encompassed her human rights is not a valid basis to set aside the Release.

19Furthermore, the applicant acknowledged that she was under no coercion or duress from the respondent which compelled her to accept the severance package and execute the Release on April 2, 2009, a week before the expiration of the offer. The fact that the applicant felt economic pressure to make a quick decision because of her family income does not justify setting aside the terms of the Release. The Tribunal in Kailani, supra, noted that the test for economic duress is high. As stated in Kailani at para. 35:

Most people who have had their employment terminated are faced with economic difficulty. Financial difficulty alone cannot therefore be sufficient. If it were, almost every settlement arising out of the termination of employment could be violated.

20Although the applicant indicated to the employer that she sought legal advice, she now resiles from this statement and claims that she decided against seeking legal advice because she could not afford the fee. Again, this was her choice and in no way influenced by the respondent. The respondent entered into an agreement with the applicant on the expressed understanding that she consulted a lawyer and, in compliance with the terms of the agreement, the respondent continued the applicant's salary for twelve weeks, maintained benefits and provided career transition services. In my view, the respondent must be entitled to rely upon this agreement and the Release as the basis to end all employment-related claims.

21The Application is dismissed.