HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Estelle Rivard

Applicant

-and-

George Brown College, John Walker, Cynthia McDonagh and Ontario Public Service Employees Union

Respondents

DECISION

Adjudicator: Sheri D. Price

Date: December 17, 2009

Citation: 2009 HRTO 2212

Indexed as: Rivard v. George Brown College

APPEARANCES BY:

Estelle Rivard, Applicant ) Bette Barbe, Representative

George Brown College ) Michael Kennedy, Counsel and John Walker, Respondents )

Ontario Public Service Employees ) Nini Jones, Counsel Union and Cynthia McDonagh, ) Respondents ) )

BACKGROUND

1This Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleges that the respondents discriminated against the applicant on the basis of disability in respect of employment.

REQUEST FOR EARLY DISMISSAL OF APPLICATION ON BASIS OF FULL AND FINAL RELEASE

2The respondents have requested the early dismissal of the Application without full Responses on the basis that the applicant signed a full and final Release in respect of any claims under the Code as part of the settlement of a grievance regarding the same facts as the Application. The respondents submit that it would be an abuse of process to permit the applicant to proceed with the Application in light of the fact that the applicant signed a Full and Final Release in respect of the subject matter of the Application.

3The applicant acknowledges that she signed the Release and does not dispute that the Release covers the subject-matter of the Application, and that if given its legal effect it bars her Application from proceeding. The applicant contends, however, that the Release should be set aside and she should not be bound to it because she did not know what she was signing when she signed the Release.

4In an earlier Interim Decision in this matter, 2009 HRTO 649, I determined that it would be appropriate for the Tribunal to determine as a preliminary matter whether to dismiss the Application on the basis of the Release signed by the applicant.

5An oral hearing regarding the respondent’s request for early dismissal of the Application was held on September 2, 2009. I heard evidence from the applicant, Nancy Hood, the Executive Director of Human Resources with George Brown College and Cynthia McDonagh, a representative with Ontario Public Service Employees Union (“OPSEU” of “the Union”). The parties also had an opportunity to present their legal arguments on the issue to be determined.

EVIDENCE

6The applicant was employed at George Brown College (“the College” or “the employer”) as a word processor. She worked at the College for 28 years. During the course of her employment, the applicant was a member of a bargaining unit represented by OPSEU.

7In May 2008, the applicant received a letter from the employer setting out certain concerns it had about the applicant’s attendance and requesting that the applicant provide a statement from her doctor regarding her absences from work as well as any work restrictions affecting the applicant’s ability to work.

8In response to the letter, the applicant submitted a note from her doctor which she asserts was not accepted by the employer. Accordingly, the applicant, through her trade union, OPSEU, filed a grievance against the College dated May 29, 2008. Grievance settlement discussions involving the applicant, the union, and the employer ensued.

9According to the applicant, at some point during these discussions, her union representative, Cynthia McDonagh, raised the possibility of the applicant taking early retirement as a means of resolving the grievance. In July 2008, the employer provided the applicant with a detailed written offer in this regard. In essence, the employer’s proposal was that the applicant would be placed on a paid leave of absence at a fixed salary until June 30, 2010, at which time she would retire, as planned, with an unreduced pension. The details of the employer’s offer were set out in 22 paragraphs, among them, the following:

14. You and the Union will withdraw any grievances that have been filed.

15. You will provide the College and the Union with a “release” indicating that you have made the decision to accept this offer having received independent advice and on a voluntary basis and that the College has met all its obligations to you with respect to your employment and your retirement, pursuant to the Collective Agreement, relevant employment legislation and the Human Rights Code. A copy of a release will be provided to you.

10The applicant testified that she read the offer when she received it in July 2008.

11On August 12, 2008, the applicant emailed her union representative with a question about the employer’s offer. Specifically, she emailed Ms. McDonagh to confirm that she was correct in her understanding that, if she accepted the employer’s proposal, the applicant would not receive her salary during a potential strike in September 2008 and to ask whether she would benefit from any wage increases that were negotiated.

12On August 20, 2008, the applicant met with Ms. McDonagh, her Union representative and Nancy Hood, the Executive Director of Human Resources with the College, to discuss the employer’s offer. At this meeting, Ms. Hood went through the offer in detail. Among other details, the precise amount of the applicant’s salary during the leave of absence was discussed. The offer clearly stated on its face that that salary would be “subject to require statutory deductions and the usual benefit and pension deductions, except as otherwise noted”.

13The applicant testified that the Union negotiated an increase to her salary during the August 20, 2009 meeting, as well as the payment to her of a lump-sum amount, which would allow her to pay off a small loan. The applicant testified that she was told during the meeting what her biweekly pay would be, and that it would be subject to deductions. However, the applicant testified that she had “no concept” of the “arithmetic” of the offer. The applicant testified that, after the meeting, her Union representative told the applicant that the employer’s offer was a good one and advised her to accept it. Ms. McDonagh testified that she was very clear with the applicant that it was her choice whether to accept the employer’s offer and that she could continue working if she preferred not to accept the offer.

14Following the August 20, 2008 meeting, on August 21, 2008, the employer emailed the applicant a revised offer, which reflected the increase to the applicant’s salary and the lump-sum payment, which had been negotiated during the meeting. The applicant testified that although she received the revised offer by email, she did not read it because she assumed that it was the same thing that had been discussed at the August 20, 2008 meeting and she “just left it at that.”

15The applicant also testified that the employer sent her an email on August 22, 2008 which enclosed the Release form which the applicant ultimately signed on August 25, 2008. That email stated, in relevant part:

Attached is a copy of the release form. It is a rather wordy thing that basically says that if we give you what we have outlined in the ltter (sic), that you withdraw all your grievances, that you have had a chance to review the ltter (sic) and the terms, that you accept them, and that the College has met is obligations to you. It also says you won’t sue us or file any other grievances or file a complaint against us at the Human Rights Commission. Let me know if you have any questions with it.

16The Release itself states, in relevant part:

In consideration of the payment to me of the funds to be received pursuant to the terms of the letter dated August 21, 2008 and attached hereto, I, Estelle Rivard, do hereby release and discharge George Brown College, the Board of George Brown College, the officers and administrators of George Brown College and OPSEU and OPSEU Local 557 and its officers, from any and all actions, causes of action, proceedings, claims and demands at law or equity which I ever had or now have including without limitation any and all claims arising out of or in any way related to or connected with my employment by or retirement from my employment the College.

…

I declare that I fully understand the terms of this Release and that I have had an opportunity to review the terms of my early leaving plan and retirement with independent counsel. I understand it contains a full and final release of any claims, which I have or may have relating to my said employment or retirement from the College with respect to all legal requirements including the Human Rights Code… I voluntarily accept the said consideration for the purpose of making a full and final compromise, adjustment and settlement of all issues related to any matters arising out of my employment and my retirement. (emphasis in original)

17The applicant testified that, after she received the August 21 and 22, 2008 emails with the employer’s early retirement offer and the accompanying release, she called her Union representative, Ms McDonagh, and told her that she was going to “take the deal”.

18On August 25, 2008, the applicant signed the release in the presence of a coworker in her department, whom the applicant herself sought out to witness her signature. After signing the release, the applicant faxed the signed release to the employer. None of the respondents were present when the applicant signed the Release. In accordance with the agreement, the applicant commenced her paid leave of absence in September 2008.

19From the filing of the applicant’s May 2008 grievance until her last day of work in August 2008, the applicant was actively employed in her regular job with the College.

20The applicant testified that she did not read the release before signing it. She testified that, in any event, even if she had read it, her mental state at the time that she signed the release was such that she was not capable of grasping its terms. In this regard, she testified that she was taking anti-depressant and other medications, which made it difficult for her to comprehend things. She also testified that she could not fathom what was in the release because there were too many other things on her mind at the time. Specifically, she was concerned that her apartment would be unsecured for a five-day period while the windows in it were being replaced. The applicant acknowledged that work in her unit did not begin until after she had signed the release on August 25, 2008. However, she was very anxious in anticipation of the work because she did not know when the work would begin and she expected to receive very little notice of the work in her unit. The applicant also testified as well that there was constant noise at work due to construction there, as well as constant noise at home, all of which exacerbated her difficulties.

21The applicant also submitted a May 5, 2008 Physician’s Statement of Employee’s Work Restrictions and a July 2008 doctor’s note into evidence at the hearing. The May 5, 2008 physician’s statement refers to increased daytime sleepiness as the applicant’s only work restriction. The July 2008 doctor’s note indicates that the applicant has difficulty rising in the morning and requests a flexible start time on her behalf. Otherwise, it does not refer to any mental impairments or restrictions on the applicant’s abilities.

22The applicant testified that, after the employer presented her with its early retirement offer, the applicant requested a breakdown of what her take-home pay would be if she were to accept it. She testified that she requested the breakdown so that she could make an informed decision about whether she could afford to retire and whether to accept the employer’s offer. The applicant testified that Ms. Hood told her that she would get the breakdown she desired when she signed the release and that if the College went into her file without her signature on the release, the applicant could sue the College for breach of her privacy. The applicant testified that on August 25, 2008, when she signed the release, she thought she was merely giving the employer permission to access her records in order to provide her with the information she had requested.

23Contradicting the applicant’s evidence on this point, Ms. Hood testified that, during the August 20, 2008 meeting, she explained that if the applicant were to accept the employer’s offer, she would be required to sign a release and that, by doing so, the applicant would be agreeing not to initiate any legal proceedings, including the filing of a human rights complaint, in respect of her employment with or retirement from the College.

24Ultimately, the applicant was not provided with a breakdown of what her take-home pay would be under the employer’s offer. Even though this was vital information for her, the applicant testified that she decided to sign the release in the absence of such information because she was afraid that she would miss out on the opportunity to retire early if she insisted on figures before signing and if she did not sign by August 25, 2008. According to the applicant, she had been told that she had to sign the release by no later than August 25, 2008 in order to “get her money” and forms by her last day of work, Friday, August 29, 2008. When asked what money she had signed the release to “get”, the applicant acknowledged that she was referring to the lump-sum amount and other monies to which she was entitled pursuant to the employer’s revised offer.

25Although the applicant knew what her gross annual income under the offer would be and that it would be subject to deductions, the applicant says that she did not realize what her take-home pay would be. The applicant testified that after she did, in fact, accept the employer’s early retirement offer, her take-home pay was considerably less than she had expected it to be and if she known what it would have been, she would not have accepted the employer’s offer.

26The applicant testified that she did not get legal or financial advice about the employer’s offer, because she thought it would be expensive and she did not think she could afford it. She testified that she had confidence in her Union’s advice that the offer was a good one and left it at that.

DECISION

27Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. This Tribunal has held that filing a human rights application after signing a full and final release in respect of the subject-matter of the application may constitute an abuse of the Tribunal’s process and where that is the case, such applications should be dismissed: Dube v. Rockhaven Recovery, 2009 HRTO 53; Sinnett v. Orlick Industries, 2009 HRTO 916 and Kailani v. Securitas Canada, 2009 HRTO 1183.

28In a nutshell, the applicant submits that she should not be bound by the release she signed because she could not understand what she was signing; and/or because she did not understand what she was signing.

29I do not accept the applicant’s evidence that she was not capable of understanding what she was signing when she signed the release. Although the applicant presented some medical evidence that she was experiencing increased sleepiness at the time she signed the release, she did not present anything even approaching the kind of medical evidence which would be required to establish that she was prevented from understanding the significance of the release by reason of mental illness or disability. Medical documentation completed around the time that the release was signed indicated that the applicant had no restrictions on her ability to work other than increased sleepiness and difficulty getting up in the morning. The applicant was performing her regular duties as a word processor throughout the entire period in question. Also, on August 12, 2008, the applicant wrote her Union representative to ask about the impact of a potential strike on her situation, if she were to accept the employer’s offer. All of this is inconsistent with the level of mental incapacity alleged by the applicant at the time she signed the release on August 25, 2008.

30I also cannot accept the applicant’s evidence that when she signed the release she thought that she was merely agreeing not to sue the employer for breach of privacy for accessing her records so as to advise what the applicant’s take-home pay under the employer’s offer would be. This is contradicted by the applicant’s own testimony. The applicant testified that after the August 20, 2008 meeting and after receiving the revised offer from the employer, she called her Union representative and told her that she was “taking the deal”. This is not consistent with her version of events that she was waiting for the take-home pay breakdown before making a decision.

31The applicant also testified that she decided to sign the release when she did because she was afraid that if she did not, and if she insisted on getting the take-home pay figures before accepting the offer, she would miss out on the early retirement opportunity altogether. She knew that by signing the release, she would be leaving the workplace for good on August 29, 2008 and receiving the compensation owing to her pursuant to the employer’s offer. In other words, the applicant knew that when she signed the Release, she was actually agreeing to “take the deal”, and not merely giving permission to access her records. If she truly believed that signing the release was merely giving the employer permission to access her records, she would not have expected to be leaving the workplace for good a couple of days later and to receive monies that would only be owing to her if she accepted the employer’s offer. In my view, on the applicant’s own testimony, it is clear that, when she signed the Release, the applicant knew that she was accepting the employer’s offer and that she was accepting it in the absence of the take-home pay information that she had requested. Although I accept that the applicant had requested that information and no doubt would have preferred to have had it before accepting the employer’s offer, the evidence establishes that she did chose to accept the offer in the absence of that information.

32Even if the applicant was told at some point, mistakenly, that the release was merely giving the employer permission to access her records, the wording of the release itself, the employer’s August 22, 2008 email to the applicant about the release, and the written description of the release in the employer’s original and revised offers could have left no doubt as to the nature of the release. The August 22, 2008 email from the employer and the written description of the release in its offer succinctly and in plain language explained that signing the release meant that the applicant was giving up her right to pursue any or all legal claims in respect of her employment or retirement, including claims under the Code. The applicant testified that she did not read the release itself, but she did read the employer’s offer which stated that a release would be required and what the release would mean. If, as she contends, the applicant chose to sign the Release without reading it, then she is responsible for that choice. A party to a legal agreement cannot enter into it without taking the time and effort to understand it and then rely on her own lack of attention as the basis upon which to resile from the agreement. The applicant had ample opportunity to review and consider the employer’s proposal after she received it in July 2008 before she accepted it on August 25, 2008.

33In the case at hand, the applicant does not dispute that the release, if given legal effect, would prevent her from pursuing the Application. According to the clear and unambiguous wording of the release, the applicant agreed to release the respondents from any claims relating to her employment with or retirement from the College, including, specifically, any claims under the Code. The applicant has not shown that she was not capable of comprehending the release or that she misapprehended the nature of the release. The evidence establishes that the applicant made a choice to sign the release and to give up her right to pursue legal claims under the Code in respect of her employment by or retirement from the College. It would therefore constitute an abuse of the Tribunal’s process to allow this Application to continue.

ORDER

34The Application is dismissed.