HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ranford James

Applicant

-and-

Evonik Degussa Canada Inc. and Lu-Anne Trainor

Respondents

case Resolution Conference DECISION

Adjudicator: Dale Hewat

Date: May 5, 2009

Citation: 2009 HRTO 555

Indexed as: James v. Evonik Degussa Canada

AppearanceS BY

Ranford James, Applicant ) S. Korona, ) Representative

Evonik Degussa Canada Inc., and ) Lu-Anne Trainor, Respondents ) Lorenzo Lisi, ) Counsel )

introduction

1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) claiming discrimination contrary to sections 5(1), 5(2) and 9 of the Code. The underlying human rights complaint was filed with the Ontario Human Rights Commission on September 28, 2007 and abandoned upon filing this Application with the Tribunal.

2The Case Resolution Conference was conducted on March 27, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. The purpose of the Case Resolution Conference was to address the respondents’ Request to have this matter dismissed on the grounds that the Application is untimely and that the applicant entered into a settlement with the respondent employer and signed a release releasing the respondents from any claims arising from the termination of his employment. In an earlier decision of the Tribunal, 2008 HRTO 129 (the “October 2008 decision”), the parties were advised that a Case Resolution Conference would be scheduled to deal with these preliminary issues prior to mediation in this matter.

3At the beginning of the Case Resolution Conference, the applicant’s representative indicated although another colleague in his firm had previously dealt with this application, he only had carriage of the file for a few days and that he was attending for the purpose of proceeding on the merits of the Application. It should be noted that despite the October 2008 decision, neither the applicant nor his representative submitted any response or supporting documents with respect to the respondents’ Request for early dismissal of the Application. The only thing provided was a “will-say” document generally outlining the applicant’s testimony on the merits with no mention of the timeliness issue or the release. Despite the lack of submissions or documents, the applicant’s representative stated that he was prepared to make his case and also indicated that the applicant was asserting that the release in question was signed under duress. Counsel for the respondents argued that I could not deal with the merits of the case and that we should proceed directly to legal arguments on the preliminary matters without allowing the applicant to respond with any evidence given that the applicant or his representative’s paralegal firm had not complied with the Tribunal’s directions or Rules of Procedure.

4I ruled that the Case Resolution Conference would only deal with the preliminary issues of timeliness and the settlement/release as directed and clearly defined by the October 2008 decision. I told the applicant’s representative that his paralegal firm failed to comply with the Tribunal’s Rules of Procedure and all of the orders and directions made by the Vice-chair in the October 2008 decision and that there had been ample time to make submissions and file documents. Notwithstanding the importance of enforcing the Tribunal’s Rules of Procedure, based on the circumstances of this Case Resolution Conference including the presence of all the witnesses and the limited likelihood of prejudice to the respondents, I ruled that the applicant be given a full opportunity to respond to the preliminary objections on timeliness and the settlement/release. However, since the applicant’s will-say statement did not deal with either timeliness or allegations of duress, I indicated that without evidence to the contrary I may draw an adverse inference about the applicant’s explanations. In addition, I advised the parties that, if necessary, I would be prepared to give the respondents adequate time to respond in the event of any new or surprising testimony.

Decision

5The respondents’ Requests to have this matter dismissed on the basis of the existence of a settlement/release is granted. Given my findings on the objection with respect to the settlement/release, it is not necessary to deal with the timeliness objection. What follows are my reasons for the decision.

Background

6The applicant worked as a filling and packaging clerk for the respondent company for over 19 years. On July 10, 1996, the applicant was called at home by Lu-Ann Trainor, the corporate respondent’s Human Resource Manager, and was requested to come into the office for a termination meeting. The applicant attended the meeting with Ms. Trainor with his manager present for most of the meeting. There was some dispute in the testimony over whether the applicant had called in sick for July 10, 2006. For the purpose of this decision, it is only relevant that the applicant was contacted by Ms. Trainor on July 10, 2006 and did attend the meeting.

7Ms. Trainor testified that the applicant was terminated without cause due to company downsizing and was provided with a severance package which she reviewed with him during the meeting. The terms of the applicant’s package included a salary continuance and benefit package that would expire on September 18, 2007 providing the applicant with 62 weeks’ salary and group benefits. The applicant was also offered an additional four weeks salary based on age dictated by company policy. For the applicant’s benefit, the salary continuance would not end in the event that the applicant found alternate employment. In addition, Ms. Trainor explained that at the conclusion of the salary continuance, the applicant would be entitled to a variety of pension options. She suggested that the applicant take the pension information to a bank or advisor to review the future pension options. Ms. Trainor also stated that, in accordance with company protocol, she told the applicant to review the severance package with his family and to seek independent legal advice. The applicant was given a deadline of one week to consider whether he would accept the respondent employer’s severance offer.

8Three days after their meeting on July 13, 2006, the applicant met with Ms. Trainor and accepted the severance package. The applicant signed the release that was included in the termination letter. Ms. Trainor witnessed the applicant’s signature. The release includes general language releasing the respondents from any kind of claim in relation to his employment including any claim under the Ontario Human Rights Code. The release begins with the following standard language:

I acknowledge that I have carefully read, understand and hereby voluntarily accept the severance package as set out in the above letter, after having had a reasonable opportunity to obtain independent legal advice.

9The applicant received all of the payments due under the severance package and had no contact with the respondent employer during the severance period. Just prior to the expiration of the severance package, the applicant requested to meet with Ms. Trainor to discuss his pension entitlement. They met on September 7, 2007 during which the applicant sought a lump sum payout of his pension. Apparently, the applicant had mentioned to Ms. Trainor that he wanted to use the pension funds for a possible property investment in Jamaica. Ms. Trainor realized that the applicant had received incorrect pension advice and explained to the applicant that a lump sum payment was not an option and that he would be required to transfer the pension into a locked-in retirement pension fund account. The meeting ended without any reference or mention of the severance package or release. On September 28, 2007, over 14 months after the acceptance of the severance package, the applicant filed a human rights complaint against the respondents.

10In examination-in-chief the applicant testified that although he recalled being told by Ms. Trainor that the meeting on July 10, 2006 was to discuss his termination, salary continuance and pension, he stated that he did not receive the termination letter in the package of documents provided in that meeting. The applicant explained that he did not want to retire and thought the focus of the meeting was about his pension entitlement. He further testified that following the meeting with Ms. Trainor he did meet with a bank representative to discuss his pension options but did not ask for or receive any independent advice about the terms of the severance package. During cross–examination, the applicant claimed that he did not know the meeting on July 10, 2006 was a meeting about the termination of his employment and maintained that the meeting was about his pension entitlement. The applicant also claimed that he did not read the termination letter before he signed it and stated that, had he understood its contents, he would not have signed the letter or release. The applicant denied that he was advised to seek independent legal advice.

11I do not accept the applicant’s testimony about his understanding of the termination of his employment and I do not find that there was any duress that would bring the validity of the release into question. The applicant’s testimony was inconsistent in how he recalled the purpose of the July 10, 2006 meeting. When questioned by his own representative, the applicant admitted that he knew the meeting was about the termination of his employment and that he was upset because he did not want to retire and felt that he was being forced out of the company. In cross-examination, the applicant insisted that he did not know it was a termination at the time and that the paperwork was not explained to him. The applicant also claimed that when he signed the release there were all kinds of pressures including the fact that Ms. Trainor witnessed his signature on the release.

12Ms. Trainor’s testimony clearly identified her role in the applicant’s termination of employment which was consistent with how she has handled many terminations for the respondent employer during her 30 years of service. I believe that the applicant did receive an explanation of the severance package and was told to discuss the terms of the offer with his family and with independent legal and financial advisors. There was no evidence of any pressure on the applicant to accept the severance package before the expiration of one week and, in fact, he came into the office voluntarily three days after the initial meeting on July 10, 2006. In addition, I do not agree that the fact that Ms. Trainor witnessed the applicant’s signature on the release constitutes duress. The evidence showed that the applicant and Ms. Trainor had a good working relationship during their lengthy service with the company. Ms. Trainor also testified that on occasion she has witnessed other releases when an employee has forgotten to obtain a witness signature in advance of final acceptance of a severance offer.

13The most telling evidence, however, is that the applicant collected all of his salary continuance and benefits for the duration of the severance period and never contacted the respondents to complain about his termination of employment, the release or the terms of the severance package. When the applicant met with Ms. Trainor on September 7, 2007, the only matter they discussed was his pension entitlement. Furthermore, the original human rights complaint was initiated only after the completion of the terms of severance and does not address any allegations of duress or concerns with the release.

14Given all of the circumstances, it would be manifestly unfair to the respondents and an abuse of the Tribunal’s process to allow this Application to continue. The applicant is not unsophisticated and has had representation by a paralegal firm for many months without challenging the release in advance of the Case Resolution Conference. His human rights complaint does not state that the applicant misunderstood the terms of his severance package or was under any duress when he signed the release. In addition, the will-say statement provided in advance of the Case Resolution Conference is silent on any claims of duress or misunderstanding on the part of the applicant, other than to state that the applicant was in shock about his termination. Given the applicant’s length of service, it is not unreasonable to assume that he would have been in shock over the termination of his employment. However, on the evidence before me, there is no basis for concluding that the applicant signed the release under pressure or that undue pressure was brought to bear by the respondents.

15Section 23(1) of the Statutory Powers of Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that the Tribunal may make such orders as it considers proper to prevent an abuse of its processes. To allow this Application to proceed would constitute an abuse of process in light of my findings.

Order

16The respondents’ preliminary objection that the case should not continue in light of the existence of a settlement and final release is allowed. As a result, the Application is dismissed.