Zarubiak v. Brain Injury Services of Hamilton, 2010 HRTO 1066

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Judith Zarubiak Applicant

-and-

Brain Injury Services of Hamilton, Jan Narduzzi and Laurie Graham Respondents

DECISION

Adjudicator: Alison Renton Date: May 13, 2010 Citation: 2010 HRTO 1066 Indexed as: Zarubiak v. Brain Injury Services of Hamilton

APPEARANCES

Judith Zarubiak, Applicant ) On her own behalf Brain Injury Services of Hamilton ) Anna Vereschagin, Counsel Jan Narduzzi and Laurie Graham, Respondents )

INTRODUCTION

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant worked for the corporate respondent from February 23, 2009 until September 3, 2009 when she was terminated. She alleges that she was subjected to discrimination on the basis of family and marital status in employment and raised these issues with the corporate respondent prior to her termination. She filed her Application on September 15, 2009.

2The respondents filed a partial Response requesting an early dismissal of the Application on the basis that the applicant accepted a termination compensation package offered by the respondent and signed a full and final release on September 10, 2009.

3In an Interim Decision dated January 28, 2010, 2010 HRTO 212, I ordered that a conference call hearing be scheduled to hear submissions from the parties on the issue of whether the Application should be dismissed as a result of the release signed by the applicant.

4The conference call hearing was held on April 28, 2010. On review of the material before me and the submissions made during the conference call hearing, I am satisfied that this Application should not proceed.

BACKGROUND

5When the applicant was terminated on September 3, 2009, the corporate respondent gave her a letter the same date offering her a termination compensation package (“the offer”) in exchange for the applicant executing a full and final release (“the release”). The release was attached to the offer. The offer requested that the applicant advise the corporate respondent whether or not it was acceptable to her by September 10, 2009 (“the deadline”).

6The release, which is entitled “Full & Final Release”, contained the following provisions:

…in consideration of the payments described to me as set out in the correspondence dated September 3, 2009 attached, less all statutory deductions, the receipt and sufficiency of which is hereby acknowledged, do hereby for myself…. release and forever discharge BRAIN INJURY SERVICES OF HAMILTON…. (hereinafter referred to as the “Companies”) …. directors, officers, agents, representatives and employees from any and all debts, claims, complaints (including Ontario Human Rights Code), demands, actions, causes of action, suits, dues, sums of money, damages, costs, loss of service, expenses, compensation, controversies, agreements, promises and all liabilities of any kind or nature whatsoever in law, in equity or otherwise (hereinafter collectively referred to as “Claims”) which I have ever had, now have or which I, …. can, shall or may have, for or by reason of, or in any way arising out of any cause, matter or thing existing up to the present time but not by way of limitation thereof in full payment and satisfaction of any and all claims and demands arising out of or in any way related to my employment by the Companies.

…I have read over the above Release and understand it as a full and final Release of all claims I may have against the Companies and persons covered by this Release arising out of my employment and/or termination from employment with the Companies.

7On September 9, 2009, during the evening, the applicant emailed the corporate respondent’s manager of Human Resources, Laurie Keefe, and asked several questions about when she would receive payment of the financial terms of the offer, and referenced the Employment Standards Act, 2000, S.O. 2000, c.14, as amended (“ESA”). She also wrote, “I would also like to ask if in the letter you would like me to sign, on the advice of a lawyer if you will include a reference letter from [supervisor]?”

8The next morning, Ms. Keefe emailed the applicant with responses to her questions. In that email she advised the applicant that the amount she would receive would depend on whether the release was signed. She wrote, “If we do not receive the release [today], we will process [the amount of pay] in lieu of notice (as per employment standards), your pay up to and including the date of your termination and any outstanding vacation pay”. She indicated that she would be prepared to provide the applicant with a neutral letter of employment. The applicant emailed back asking if she could fax the release. A faxed release was acceptable to the corporate respondent to process the payment, but the original was required before a cheque would be released. The applicant subsequently executed the release on September 10, 2009, with a witness’s signature, and sent it to the corporate respondent.

POSITION OF THE PARTIES

9The applicant requests that her Application not be dismissed. She submits that she asked the corporate respondent for an extension to meet with a lawyer and get some legal advice, but her request was declined. She stated that several days before the deadline, she spoke with a lawyer by telephone as the lawyer was too busy to meet in person, and while he did not see the offer or the release, he gave her some advice including requesting a letter of reference.

10The applicant did not appreciate that the harassment and discrimination concerns that she had raised prior to her termination could not continue to be addressed subsequent to her termination. No one reviewed the terms of the release with her and she did not know that she was releasing the respondents from any claims about human rights issues. She felt pressured into signing the release because her extension was not granted, and, as a single parent, she felt financially pressured into signing the release. She feels that the respondents acted in bad faith in not addressing her concerns prior to her termination and for submitting that her Application should be dismissed.

11The respondents’ counsel submitted that the release should be binding upon the parties and the Application be dismissed. The applicant was given a period of time to review the release before signing it and she signed it with the full knowledge that she was releasing the corporate respondent and its employees from any claims including those under the Code as the release specifically references the Code. The applicant obtained legal advice before signing the release and made knowledgeable inquiries before signing the release about her ESA entitlements as indicated in her email communications with Ms. Keefe. There was no pressure on the applicant to sign the release and the email communications from Ms. Keefe demonstrate that the applicant would have received her ESA entitlements if she had not signed the release. The respondents deny that the applicant asked for an extension of time to further review the terms of the offer.

ANALYSIS AND DECISION

12It is important to stress that this case is not being decided on the merits of the allegations raised in the Application. I have heard no evidence as to the allegations of discrimination made by the applicant against her former employer, the corporate respondent, or the individual 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 respondents to defend against the allegations of discrimination.

13The 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. The applicant referred to 4 principles set out in Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ON S.C.). But, as noted in Jing v. Dell Canada, 2009 HRTO 1799, at para. 21, Pritchard was decided under section 34 of the old Code, which invoked bad faith rather than abuse of process, and thus has limited use. Since the revisions to the Code in 2008, this Tribunal has held that filing a human rights application after signing a full and final release can constitute an abuse of the Tribunal’s process: see, for example, Stansens v. Liquor Control Board of Ontario, 2009 HRTO 1560, Sinnett v. Orlick Industries, 2009 HRTO 916, Douse v. Hallmark Canada, 2009 HRTO 1254, and Hynes v. CUMIS Group, 2009 HRTO 1783.

14First, 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 respondents from all “…claims, complaints (including Ontario Human Rights Code), demands, actions, causes of action, suits, dues, sums of money, damages….” I have no difficulty in finding that this release clearly encompassed claims brought under the Code particularly as it was specifically mentioned in the release language.

15Parties entering into settlement agreements generally face a variety of pressures, but absent extraordinary circumstances such as those that amount to duress or coercion, they will be held to the terms of their settlement. While I appreciate that the applicant, as a single parent, may have felt frustrated by her options and not have wanted to sign the release, I find that she did exercise an informed and reasoned choice.

16There is no indication that the applicant was under severe financial pressure or suffered financial hardship. Even if I were to accept that upon termination the applicant had financial pressures to support her family, the case law is clear that economic pressure alone is not sufficient to set aside a release: see Sinnett v. Orlick Industries, supra at para. 24. The Tribunal, in Kailani v. Securitas Canada, 2009 HRTO 1183, at para. 35 held that the test for economic duress is high:

Most people who have had their employment terminated are faced with economic difficulty. Financial difficulty alone cannot therefore be sufficient. If it were, almost every settlement arising out of the termination of employment could be violated.

17There is also no indication that that the applicant was under duress or coercion to sign the release. The fact that the applicant felt some time pressures in making her decision does not justify setting aside the terms of the release, even if her request for an extension was denied. While she did not have time to meet with a lawyer in person, she did speak with one over the telephone. Amongst other things, the lawyer suggested that she ask for a letter of reference, which she did as indicated in her email communications with Ms. Keefe, who agreed that a letter of employment would be provided. Ms. Keefe also told the applicant about the payment she would receive if she did not sign and return the release by the deadline. The applicant decided to sign the release on September 10, 2009 and returned it to the corporate respondent.

18I have difficulty accepting the applicant’s claim that she did not understand what she was signing because no one reviewed the terms of the release with her. The release specifically references the Code. Further, she not only had the opportunity to seek legal advice, but she had actually obtained legal advice, orally, from a lawyer about her situation even if the lawyer, for reasons not explained to me, did not see the terms of the release. Finally, her email communications with Ms. Keefe demonstrate a level of understanding about other statutory entitlements.

19I am therefore satisfied that the respondents are entitled to rely upon this release and the applicant is thereby precluded by the release from pursuing this Application under the Code. It would be an abuse of process for the matter to proceed in these circumstances.

20The Application is dismissed.