Kelly Sinnett v. Orlick Industries Limited, David Braley and Rick Korpa, 2009 HRTO 916

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Sinnett

Applicant

-and-

Orlick Industries Limited, David Braley and Rick Korpa

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: June 25, 2009

Citation: 2009 HRTO 916

Indexed as: Sinnett v. Orlick Industries

APPEARANCES

Kelly Ann Sinnett, Applicant ) On Her Own Behalf

Orlick Industries Limited, Respondent ) Patricia G. Murray, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was sexually harassed by the personal respondents and that her employer, the corporate respondent, failed to take appropriate steps to address the harassment.

2The respondents have requested early dismissal of the Application on the basis that the applicant has signed a full and final release regarding the subject matter of the Application. The applicant acknowledges that she signed the release and that it deals with the subject matter of this Application. She argues, however, that she was forced to sign the release and that, in the circumstances, it should not prevent her from seeking a remedy before the Tribunal.

3In an Interim Decision, 2009 HRTO 55, the Tribunal ordered that a hearing be scheduled to deal only with this preliminary issue. The hearing was held on June 10, 2009. I heard evidence from the applicant and from Angelo Dionissopoulos, who was the corporate respondent’s manager of human resources at the time.

4I stress that the Tribunal has not considered the merits of this Application. This Decision deals only with the preliminary question of whether the release signed by the applicant on October 12, 2007 prevents the Application from proceeding before the Tribunal.

The Facts

5The applicant was employed by the corporate respondent for approximately 12 years. She alleged that she was being sexually harassed by the personal respondents and, in May 2007, she began a period of sick leave, which she states was precipitated by the alleged harassment.

6While she was on sick leave, the applicant retained counsel. Her counsel communicated with counsel for the corporate respondent beginning on May 15, 2007. He set out in detail the alleged incidents of harassment, raised the possibility of arriving at a settlement agreement, and directed the corporate respondent to communicate with him and have no further direct communications with the applicant.

7The applicant received her full salary from May 2007 to approximately September 4, 2007. She understood that these sick leave benefits would cease on or about September 4 and that, unless she returned to work, she would be without employment income as of that date.

8On August 29, 2007, the applicant obtained a letter from her treating physician which stated:

Ms. Sinnett was reviewed today, and while she is still experiencing anxiety symptoms, she has decided that she feels able to attempt a return to work. … I feel it would be reasonable for her to attempt a return to work.

9On September 4, 2007, the applicant attended at the workplace with the intention of returning to work. Leading up to this date, there had been no communication between the applicant, her counsel, and the corporate respondent regarding her return to work. Mr. Dionissopoulos testified that he was not expecting the applicant to attend work on September 4, 2007.

10The applicant was not permitted to return to work on September 4, 2007. Rather, Mr. Dionissopoulos asked her to provide further medical evidence (from a doctor of the corporate respondent’s choice) regarding her fitness to return to work. Mr. Dionissopoulos testified that he did so because the applicant had previously provided a specialist’s report detailing her disability, the wording of the treating physician’s letter seemed uncertain, and the letter from the treating physician did not address whether any accommodation measures were necessary.

11The applicant testified that she did not want to undergo further medical examinations. She felt she would be further victimized and that the request was unnecessary and unfair.

12The applicant left work on September 4, 2007. Her next contact with the corporate respondent was on September 10, 2007, when she met with Mr. Dionissopoulos. He testified (and the applicant did not challenge) that he and the applicant had a good and cordial working relationship and that the tone of this meeting was friendly.

13Although there is some dispute about the discussions which occurred, the parties agree that on September 10, 2007:

a. Mr. Dionissopoulos offered to accommodate the applicant by placing her in a different position;

b. the applicant expressed an interest in ending her employment relationship; and

c. Mr. Dionissopoulos explained that he could not negotiate with the applicant directly as she was represented by counsel.

14The applicant testified that she understood from this conversation that, in order to “barter” with the corporate respondent, she must terminate her relationship with her lawyer. She testified that after telling her that he could not negotiate with her directly, Mr. Dionissopoulos told her to “get rid of her lawyer” and he would then discuss settlement possibilities. The applicant said she felt that, as a result of this conversation, she had no choice but to fire her lawyer and deal directly with the company.

15The corporate respondent insisted that this was not the case and that Mr. Dionissopoulos was simply and properly advising the applicant of his obligations not to communicate directly with individuals represented by counsel. According to the corporate respondent, the applicant chose to dismiss her lawyer. Had she not done so, negotiations would simply have continued between counsel. Mr. Dionissopoulos testified that the issue about dismissing the lawyer was initiated by the applicant and arose because the applicant felt that the discussions between lawyers were taking too long. Further, the applicant’s job was never in jeopardy and the corporate respondent was prepared to accommodate her and discuss a return to work program.

16Between May 15 and September 17, 2007, counsel for the parties exchanged further communications, apparently with a view to negotiating a settlement. By late September the parties, through their counsel, had not yet managed to reach an agreement.

17On September 24, 2007, the applicant sent the following email to her lawyer and forwarded a copy to Mr. Dionissopoulos:

As you know from our last discussion Sept 4^th, I did return to work that day with my doctor’s note and at that time I was informed by the company that I would have to see a doctor of their choice before being allowed to return. As I still have 16 vacation days left, I have been paid up until the 27^th of Sept. I do not see myself explaining my personal history once again to another stranger (doctor or not) no do I want to. Therefore I have asked to be released with the 20 week minimum and a letter of reference.

I’m not sure where this leaves us John?

Please let me know.

18On September 25, 2007, counsel for the applicant advised the corporate respondent that he was no longer retained by the applicant.

19On September 28, 2007 the applicant met with Mr. Dionissopoulos and they discussed possible settlement terms. Although nothing was finalized during this meeting, the applicant expressed a willingness to leave her employment with the corporate respondent upon receipt of a specific sum as well as coverage for some dental work. Mr. Dionissopoulos required further information as well as approval before agreeing to those terms.

20On October 11, 2007, Mr. Dionissopoulos gave the applicant a letter of offer. The letter proposed terms of settlement and referenced a release. There is a dispute as to whether or not the release was actually attached to the letter.

21On October 12, 2007, the applicant attended at the offices of the corporate respondent and signed the release as well as a document accepting the terms of the October 11 letter. The release contains the following clause:

I hereby acknowledge that I have not been subjected to any form of discrimination whatsoever and hereby represent and warrant that I have not commenced any complaint and undertake not to commence any complaint under the Human rights Code.

Analysis

22The applicant acknowledges that she signed the release and that it deals with the same subject matter as the Application. She argues, however, that she was forced to sign the release and that, in these circumstances, she should not be prevented from pursuing this Application.

23When asked to describe what was unfair about the circumstances of the signing of the release, the applicant testified that:

a. as a single mother providing for her family, she was facing economic pressures that left her with no viable option but to sign the release;

b. she did not have sufficient time to consider the terms of the release; and

c. she was forced to fire her lawyer and did not have legal representation when she entered into the agreement.

24The Tribunal must render its decisions in light of principles of law set out in its own jurisprudence as well as that of the courts. While I appreciate the applicant’s argument that the facts of every case are different, principles of law often apply despite some factual differences. In regards to the effect of releases where there is economic pressure, the case law is clear: economic pressure alone is not sufficient to set aside a release. In my view, the facts of the case at bar are not so different from the cases cited by the respondent as to warrant applying different principles.

25Parties entering into settlement agreements generally face a variety of pressures. While I do not want to take away from the economic challenges faced by a single mother working to provide for her family, I cannot conclude on this basis that the applicant signed the release under duress or that it should be set aside.

26The applicant testified that she received the settlement offer on October 11, 2007, but that she saw the release for the first time when she attended the corporate respondent’s offices on October 12, 2007. She signed it in the presence of a human resources officer whom, she said, was not able to explain its meaning to her. From the applicant’s own evidence, however, it does not appear that she asked this employee any questions about the content of the release or that she took any steps to request additional time to review it or to obtain advice.

27In terms of the applicant’s relationship with her lawyer, I accept that Mr. Dionissopoulos advised the applicant that he could not negotiate with her directly. Even from the applicant’s own evidence, it is not clear that she understood this to mean she had no choice but to dismiss her counsel. The applicant did not say she believed that, as of September 10, the corporate respondent refused to continue negotiations through counsel. Indeed, her counsel continued to write to counsel for the respondent corporation until September 17, 2007. There was also no evidence that the applicant was prevented or discouraged from obtaining advice from counsel concerning the release or the settlement agreement once it had been negotiated.

28In my view, the applicant’s decision to dismiss her counsel was also influenced by economic pressures and her desire to expedite discussions in response to these pressures. While there may have been a misunderstanding about what Mr. Dionissopoulos intended to convey to the applicant on September 10, I cannot conclude that the respondents pressured the applicant to dismiss her counsel.

29While the applicant’s evidence was that the corporate respondent’s request for further medical information was a factor in her decision to leave her employment, she did not argue or present any evidence that this request was in breach of the Code or that it was part of the allegedly unfair circumstances that led to the signing of the release.

30I realize that, at the time she signed the settlement agreement and release, the applicant was under significant economic pressure. I also appreciate that her decision to leave her employment and the circumstances of her departure were difficult. However, the corporate respondent entered into an agreement with the applicant and complied with its terms. In my view, the respondents must be entitled to rely upon a settlement agreement and release. To set aside the agreements and allow the Application to proceed would be unfair in the circumstances.

31For all of these reasons, the Application is dismissed.