Irina Korets v. Chartwell Mastercare LP, 2010 HRTO 1324

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Irina Korets Applicant

-and-

Chartwell Mastercare LP Respondent

DECISION

Adjudicator: Eric Whist Date: June 10, 2010 Citation: 2010 HRTO 1324 Indexed as: Korets v. Chartwell Mastercare

APPEARANCES

Irina Korets, Applicant ) On her own behalf Chartwell Mastercare, Respondent ) Karen Dolan

1The applicant, Irina Korets, alleges in her Application that the respondent, Chartwell Mastercare LP ("Chartwell"), discriminated against her in employment on the basis of ancestry, place of origin and disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The purpose of this Decision is to address the respondent's request to dismiss the Application on the basis that the applicant signed a full and final release.

Background

2The respondent filed a partial Response to the Application requesting an early dismissal on the basis that the applicant signed a full and final release. The Tribunal then ordered that a hearing be held to hear evidence and submissions on the request for early dismissal.

3The hearing was held on June 3, 2010. I heard from five witnesses. Brenda Prieur, Chartwell's Vice President for Human Resources; Sonia Ryerson, Chartwell's Regional Director for Long Term Care Operations; and Soili Helppi, Chartwell's Administrator for its Gibson Long Term Care facility, testified for the respondent. The applicant and Lyana Farenyuk testified for the applicant.

Decision

4The Application is dismissed. I am satisfied that the applicant freely entered into a full and final release with the respondents in respect to making any claims under the Code. Consequently, it would be an abuse of process for the Application to proceed.

Evidence

5Chartwell owns and operates a number of long-term care facilities. The applicant was employed as a social worker at the respondent's Gibson Long Term Care facility in Toronto for less than two years. The applicant testified that on February 25, 2009, she suffered a heart attack. It appears she returned to work on March 16, 2009. The applicant testified that her doctor had initially advised her to stay home for a month, but that she chose to return to work. She acknowledged that she received medical clearance from her doctor to return to work before doing so.

6The applicant's employment was terminated on March 26, 2009, at a meeting involving the applicant, Sonia Ryerson and Soili Helppi. The applicant was presented with a termination letter and an accompanying release. The letter indicates that the applicant would receive a separation package including eight weeks' pay (less applicable deductions), and would continue to receive employment and health benefits for eight weeks. The letter also states that the applicant would agree to sign a full and final release and that she would have seven days in which to do so. It was not disputed that the meeting was short— less than 30 minutes— and that the applicant was advised to obtain legal advice in regards to the release.

7On March 29, 2010, the applicant returned to Gibson Long Term Care to pick up her personal effects. She brought along the release, which she then signed with Ms. Helppi serving as witness.

8The applicant testified that she did not consult with a lawyer after having been given the release notwithstanding that the respondent and her own husband had advised her to do so. The applicant stated this was because of the stress she was experiencing. The applicant described the stress as a combination of emotional stress from having lost her job, stress related to the death of her father-in-law on February 4, 2010, and stress she was feeling about her physical health. The applicant referred to a concern about having had a recent heart attack and to having ongoing high blood pressure. Ms. Farenyuk testified that she also believed there were financial pressures on the applicant that affected her willingness and ability to obtain legal advice. However, the applicant did testify that she understood the nature of the release, that it meant she would receive benefits from Chartwell but that she would not be able to subsequently take legal action against the respondent.

9The applicant testified that she signed the release in order to calm down, to relieve her of the stress she was experiencing. The applicant testified that she thought after signing the release everything would be fine but she testified that it was not, that she continued to cry and feel stressed. She testified that when she later reflected on what had happened, she concluded that she had been treated unfairly by the respondent and that in order to resolve her concerns about the treatment she received she would file an Application with the Tribunal.

Submissions

10I heard brief submissions from the parties. The respondent submitted that the applicant was advised to seek legal advice if she so chose before signing the release, that she freely chose to sign the release, and that she acknowledged that she understood the release she was signing which was a full and final release of her claims against the respondent. They asked that the Application be dismissed. In support of their submissions, the respondent relies on Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058, 35 C.H.R.R. 39 (ON S.C.) and Douse v. Hallmark Canada, 2009 HRTO 1254 (Can LII).

11The applicant maintained that her emotional and physical condition was such that she signed the release in order to relieve her stress and to bring her "calm"; that she did not want to fight the termination because of her health. She also submitted that her emotional and physical condition clouded her judgment, and that while she had some understanding of the release, she did not fully appreciate that a consequence of signing the Release would be to prevent her from later filing an application and learning why the respondent terminated her employment. She asked for the opportunity to continue with her Application.

Analysis

12Section 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 can constitute an abuse of the Tribunal's process. See, for example, Luo v. Dell Canada Inc., 2010 HRTO 879; Zarubiak v. Brain Injury Services of Hamilton 2010 HRTO 1066 and Douse, supra.

13The Tribunal renders its decisions in the light of principles of law set out in its own jurisprudence as well as that of the courts. In Prichard, supra, the Court addressed the circumstances to be considered in determining whether a release should be set aside. While Pritchard was decided under section 34 of the old Code, I agree with the decision in Douse, supra, that the Pritchard factors can be useful in determining whether it would be an abuse of process to proceed with a hearing on the merits. The Pritchard factors look to (1) whether an applicant fully understands the significance of the release; (2) whether an applicant receives sufficient and fair consideration for signing the release; (3) whether there is evidence of economic pressure; and (4) whether there is evidence of psychological or emotional pressure amounting to duress.

14The applicant essentially relies on two of the factors set out in Pritchard for setting aside the release: that she did not fully understand the significance of the release because of the emotional and psychological pressure she was under and that she had to sign the release in order to alleviate the emotional and physical pressures she was feeling.

15In assessing whether the applicant understood the release it is important to first state that I am satisfied that the terms of the release clearly and unambiguously release the respondent from any claims arising out of the applicant's employment or the termination of her employment. The release also explicitly refers to releasing the respondent from any claims under the Code and that by signing the release the applicant acknowledges that her rights pursuant to the Code have not been violated in any manner.

16While the applicant in her submissions claimed that her emotional and psychological state impaired her understanding of the nature of the release, I note that this did not accord with her evidence. Indeed, the applicant testified she understood that by signing the release she could not pursue further legal action. On the basis of this evidence, I am satisfied that the applicant had an understanding of the essential nature of the release, notwithstanding the stresses she felt after having her employment terminated.

17The applicant also submits that she felt she had to sign the release in order to relieve her of the emotional and physical stresses she was feeling. The applicant identified that these stresses including having to deal with the fact that her employment had been terminated (without explanation) and the recent death of her father-in-law. The applicant identified concerns she had about her health and while she was not particularly specific, she did relate these concerns to the fact that she had had a heart attack approximately six weeks earlier and she did reference having high blood pressure. The applicant did not identify any ongoing economic pressures.

18All parties entering a settlement agreement face a variety of stresses and pressures. However, I do not find that the applicant has provided evidence of psychological or emotional pressure amounting to duress; that she, in effect, had no choice but to sign the release against her will or judgment. The applicant's testimony about her feelings of stress about losing her job and about her father-in- law's death do not suggest that she had, in effect, no choice but to sign the release.

19The applicant's contention that she had significant health concerns related to a serious medical condition are a more substantial issue and one I have considered carefully. However, the applicant has provided no medical evidence regarding her physical state at the time she signed her release to indicate that she was at any particular risk of further heart-related difficulties. The applicant did refer to high blood pressure, but there was no evidence provided to indicate that this was a health condition that put her at immediate risk. There was no evidence that the applicant has continued to have any heart-related difficulties since her heart attack or that her heart attack was, in some measure, related to stress. Importantly, the evidence was that the applicant was determined physically fit to return to work at the time her employment was terminated.

20Even if the applicant felt she was vulnerable to further health problems at the time she was considering signing the release, I am not satisfied that her only choice would be to sign the release. The applicant's choice was not necessarily between accepting the respondent's offer and a stressful legal battle. The applicant could have chosen not to accept the respondent's offer, received her entitlements, and preserved her rights to pursue legal action at a later date.

21Having considered all the circumstances I am satisfied that the respondent is entitled to rely on the release signed by the applicant. It would be unfair to the respondent and an abuse of the Tribunal's process to allow the applicant to pursue her Application under the Code. The Application is therefore dismissed.