Xiulei Jing v. Dell Canada Inc., 2009 HRTO 1799

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Xiulei Jing

Applicant

-and-

Dell Canada Inc.

Respondent

DECISION

Adjudicator: Faisal Bhabha

Date: October 28, 2009

Citation: 2009 HRTO 1799

Indexed as: Jing v. Dell Canada

APPEARANCES

Xiulei Jing, Applicant ) Michael Hassell, Counsel

Dell Canada Inc., Respondent ) Jeffrey P. Mitchell, Counsel )

BACKGROUND

1This is an Application filed January 19, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination on the basis of sex, stemming from the respondent’s termination of the applicant’s employment while pregnant.

2The respondent filed a partial Response alleging that the applicant’s termination of employment was part of company-wide restructuring, and was not motivated by discriminatory considerations. Additionally, the respondent requested early dismissal of the Application on the basis that the applicant signed a full and final release as part of a termination compensation package negotiated between the parties at the time of termination.

3In an Interim Decision dated April 14, 2009, 2009 HRTO 435, I ordered that a teleconference be scheduled to hear submissions from the parties on the issue of whether the Tribunal should grant the respondent’s request for early dismissal of the Application on the basis of the signed release.

4A hearing by way of teleconference was held on September 16, 2009.

5There was little dispute between the parties about the key facts giving rise to this Application. On February 25, 2007, the applicant accepted an offer of employment with the respondent as an Accounting Analyst. In January 2008, the applicant learned that she was pregnant, and informed her manager, Nazrul Islam, in February 2008.

6On April 17, 2008, the applicant was provided a letter advising her of the likelihood that her position would be eliminated at the end of July 2008 as a result of restructuring. On April 21, 2008, she sent an email to Barbara Silverberg, the Director of Legal Services with the respondent, questioning the legality of terminating a pregnant employee.

7On July 9, 2008, the respondent provided the applicant a letter, signed by Mr. Islam, confirming that the applicant’s position would be terminated effective August 29, 2008. The compensation package provided for 10 weeks’ pay in lieu of notice; a continuation of medical benefits until the end of the year; a lump sum as a prorated bonus; an additional one-time bonus; three months of outplacement job search counselling; and four weeks’ extension of the Employee Assistance Program. In exchange, Ms. Jing would be required to sign a final release.

8The release, which is at the core of this preliminary hearing, did not include explicit language referencing the Code, but includes claims related to “human rights”. The parties disagreed as to whether this language encompassed claims under the Code.

9On July 13, 2008, the applicant signed the termination letter. She signed the release on August 23, 2008. Her last day of work was August 29, 2008. On October 5, 2008, the applicant gave birth to her son.

POSITION OF THE PARTIES

10The respondent’s position is that the applicant voluntarily entered into a full and final settlement of any and all claims arising from the termination of her employment, which explicitly referenced human rights and by implication the Code.

11Respondent’s counsel argued that the applicant was under no pressure or obligation to accept the terms of settlement, was given ample time to ponder its terms, and accepted the deal willingly and with full knowledge and understanding. Furthermore, the respondent submitted that the terms of severance were favourable to the applicant, far exceeded what she would have been entitled to under the Employment Standards Act or her job contract, and therefore represented fair consideration for the signing of a full release.

12In support of the respondent’s position, counsel referred me to a number of cases. In Munro v. Halton Condominium Corporation No. 77, 2009 HRTO 97, the Tribunal refused to set aside a release in circumstances where the applicant had received no legal advice and there was no specific mention of the Code in the release. In Better Beef Ltd. v. MacLean (2006), 2006 CanLII 17930 (ON SCDC), 80 O.R. (3d) 689, CanLII 17930 (ON S.C.D.C.) at paras. 46-48, the Divisional Court held that where “the literal and ordinary meaning of the release” demonstrates a clear intention on the part of the parties to fully and finally release the employer from all claims, it should not be easily disturbed.

13The applicant took the position that she had no choice but to sign the release, given her circumstances at the time and the power imbalance between herself and the respondent. Counsel for the applicant argued that she was in no position to reject the settlement offer and fight for her rights in the middle of her pregnancy and facing the termination of her employment. Instead, she did the only thing she could to reduce stress and avoid imperilling her pregnancy: she accepted the package, while continuing to believe that it was unjust and illegal.

14The applicant therefore argued that it would not be an abuse of process for her Application to proceed. Counsel argued that the applicant’s pregnancy was both the reason the employer terminated her employment, as well as the reason she signed the release. In such a case, where the allegation of discrimination is directly connected with the signing of the release, counsel argued that it cannot be said to be an abuse of process to allow the Application to continue. Counsel asked me to adopt the approach used in Bielman v. Casino Niagara, 2009 HRTO 123, where the Tribunal decided to hear the case on the merits notwithstanding the existence of a release, and to decide what import the release should hold, if any, upon the conclusion of the hearing on the merits.

15Applicant’s counsel further argued that, because the applicant had raised the Code in her discussions with legal and human resources representatives, the respondent should have added language to its settlement documents reflecting consideration for the Code-related allegations. As a result of its failure to do so, the applicant submitted that her allegation of discrimination has not been addressed or dealt with in an appropriate manner and should not be extinguished without an opportunity to be heard on the merits. Counsel argued the Bielman approach is necessary in this case because the relevance of the release cannot be fully appreciated in the absence of a hearing on the merits.

ANALYSIS AND DECISION

16It is important to stress that this case is not yet being decided on the merits. I have heard no evidence whatsoever as to the allegations of discrimination made by the applicant against her former employer, the respondent. The question at this preliminary stage is simply whether it would be an abuse of the Tribunal’s process, considering all the circumstances, to allow the Application to proceed to a hearing, and to require the respondent to defend against the allegations of discrimination.

17First, it is necessary to consider whether the release at issue encompassed claims under the Code. In the first paragraph, the release includes broad standard language releasing the respondent from “any claims under applicable employment standards, human rights, pay equity, occupational health and safety and workplace safety and insurance legislation.” The release subsequently provides that the applicant undertakes “…to not initiate any claim or file any complaint under the terms of applicable federal or provincial legislation, including those pertaining to securities regulation, employment standards, human rights, pay equity, occupational health and safety and/or workplace safety and insurance.”

18I have no difficulty finding that this release clearly encompassed claims brought under the Code.

19Accepting that the release expressly encompassed legal action related to human rights does not end the enquiry. In Bielman, the Tribunal stated:

The Code does not explicitly bar applications such as this where a release has been signed by the applicant. In each case where a respondent requests early dismissal of an application, the Tribunal must decide whether, in the circumstances, it would constitute an abuse of the Tribunal’s process to allow the application to proceed to a hearing on the merits. An important consideration in that analysis is the respondent’s reasonable expectation that a release of this kind will bring finality to any employment related dispute they may have with a former employee.

20Thus, while the existence of a full and final release is not a bar, there are many reasons to uphold agreements reached between freely contracting parties. Failure to uphold such agreements, and to hold parties to their commitments, can undermine the integrity of negotiated settlements and hinder the timely and informal resolution of disputes.

21The Tribunal must render its decisions in the light of principles of law set out in its own jurisprudence as well as that of the courts. Counsel for the respondent referred me to Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058, 35 C.H.R.R. 39 (ON S.C.), to determine whether a release should be set aside. Counsel correctly noted the limited use of Pritchard, given that it was decided under section 34 of the old Code, which invoked bad faith rather than abuse of process, and concerned access to the since repealed investigative procedure of the Ontario Human Rights Commission rather than the right to an oral hearing before the Tribunal.

22However, the Pritchard factors can be useful in determining whether it would be an abuse of process to proceed with a hearing on the merits: Douse v. Hallmark Canada, 2009 HRTO 1254. The Pritchard factors look to (1) whether the party fully understood the significance of the release; (2) whether she received sufficient and fair consideration for signing the release; (3) evidence of economic pressure; and (4) evidence of psychological or emotional pressure amounting to duress.

23I do not find that any of the Pritchard factors, or indeed any of the possible factors courts and the Tribunal have used to determine the circumstances that warrant overriding a full release, have been established in this case.

24I have no doubt the applicant was torn about what to do, and experienced various pressures and motivations which influenced her decision to sign the release. However, while the applicant may have felt frustrated by her options, and outraged by the respondent’s decision to terminate her employment, I find that she did exercise an informed and reasoned choice.

25There is no indication that the applicant was under severe financial pressure or at imminent risk of adverse health consequences, as was the case in Bielman. No evidence was adduced to support a claim of financial hardship or health risk. Even if I were to accept that the applicant experienced some degree of financial insecurity as a result of the respondent’s decision to terminate her employment during her pregnancy, the case law is clear that economic pressure alone is not sufficient to set aside a release: Sinnett v. Orlick Industries, 2009 HRTO 916 at para. 24.

26In addition to there being no indication of severe financial pressure or serious health issues comparable to the case in Bielman, there was also no assertion of duress or misrepresentation in the negotiations that led to the signing of the release. When the applicant received notice of her termination, she was already fully aware of the potential human rights issue. Although she did not have independent counsel, she personally raised concerns with legal and human resources representatives within the company both in writing and in person. She further negotiated the terms of the severance package, succeeding in extending her medical benefits to the end of the year.

27Additionally, after signing the Minutes of Settlement, the applicant waited nearly six weeks before signing the release. She had ample time to seek advice and weigh all the factors in what is inherently a tough decision. Neither the difficulty of the choice nor the exigencies of the circumstances associated with the end of an employment relationship will automatically create a situation in which a release will be set aside.

28Finally, the mere fact that the applicant was pregnant at the time is not reason enough to overturn an otherwise sound and freely negotiated release, nor is it reason to hold a hearing on the merits and defer dealing with the issue of the release until the conclusion of a full hearing. The Tribunal has a mandate to deal with matters in a fair, just and expeditious manner. The applicant has not persuaded me that there is any good reason to set aside the release and proceed with this Application.

29The Application is accordingly dismissed.