Arrindell v. Toronto Marriott Downtown Eaton Centre, 2009 HRTO 2235

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Veronica Arrindell

Applicant

-and-

Toronto Marriott Downtown Eaton Centre

Respondent

DECISION

Adjudicator: David Muir

Date: December 21, 2009

Citation: 2009 HRTO 2235

Indexed as: Arrindell v. Toronto Marriott Downtown Eaton Centre

1This is an Application first received by the Tribunal on January 7, 2009, and perfected on August 8, 2009, brought pursuant to section 53(5) of the Human Rights Code, R.S.O 1990, c. H.19, as amended (“the Code”). This Decision deals with a preliminary request to dismiss the Application on the basis that it is an abuse of process. The respondent relies upon a Full and Final Release which the applicant signed on May 15, 2007, prior to making the human rights complaint underlying this Application on or about August 6, 2007.

2A hearing to deal with the respondent’s preliminary request to dismiss was held on November 27, 2009 in Toronto.

3The applicant was terminated from her employment of 18 years with the respondent on or about February 23, 2007. At that time she was offered the equivalent of 11 months’ salary or $47,000 and her benefits would be continued for the 11-month period. In exchange for which the respondent required that the applicant execute a Full and Final Release (“the Release”). The applicant did not immediately accept the offer and retained a lawyer to assist her. It is agreed that in early March 2007 the applicant received approximately $17,000, representing her entitlements under the Employment Standards Act, 2000, S.O. 2000, c. 41.

4The applicant retained the services of another lawyer to negotiate with the respondent employer. The initial offer of the respondent did not change and the applicant executed the Release on May 15, 2007. The Release is in the standard form and is a general release from all actions, suits, claims, etc., including any and all claims under the Employment Standards Act or the Human Rights Code.

5In her complaint the applicant acknowledges that she settled and probably had no right to pursue the complaint. The applicant also stated that she has on several occasions sought to re-negotiate the terms of the settlement.

6At the hearing the applicant stated that it would be unfair to prevent her from telling her story because of the Release. The applicant stated that she felt she had little choice at the time she settled her claims and that the respondent had taken the decision out of her hands when it paid her the $17,000 in early March 2007. The applicant stated that she used the money paid to her in early March because she had no other income at the time. She also stated that the legal advice she obtained at the time was that having accepted this payment she had no option but to sign the Release. The applicant stated that she was a single mother of three at the time, had just purchased a new home, and needed the money.

7The Application is dismissed.

8The Release is clear and unambiguous and releases the respondent from all claims including a claim or application under the Human Rights Code. However, that does not necessarily end the inquiry. As has been noted in other cases the Code does not expressly bar an Application because a Release has been executed. In Bielman v. Casino Niagara, 2009 HRTO 123, it was held:

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.

9I find that this Application amounts to an abuse of process. The applicant did not articulate any compelling reasons why the settlement and Release should not be binding on her. I find that she understood the consequences of what she was signing. I also find that there was good and sufficient consideration for the Release. She had the benefit of independent legal advice and took several months before executing the Release.

10I appreciate that having just lost her employment that the applicant would have been under considerable economic pressure. However that is going to be the case in many if not all employment cases. If a settlement freely arrived at can be avoided merely by asserting economic pressures, the incentive for the parties to resolve their disputes without a hearing will be gone and every such claim will have to be fully adjudicated. As regards the applicant’s claim that the decision was in effect taken out of her hands by the respondent’s payment of the initial sums in March, I find that it did not. In any case the applicant’s interpretation of the consequence of that payment based on what the respondent submitted was incorrect legal advice ought not to be laid at the door of the respondent, who in good faith and without any knowledge of the advice the applicant was receiving fulfilled its end of the bargain.