HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Flora Perricone

Applicant

-and-

Fabco Plastics Wholesale (Ontario) Ltd., Cathy Tadres and Claus Dieners

Respondents

INTERIM DECISION

Adjudicator: Sheri Price

Date: August 10, 2010

Citation: 2010 HRTO 1655

Indexed as: Perricone v. Fabco Plastics Wholesale

APPEARANCES:

Flora Perricone, Applicant ) Anita Balakrishna and ) Dijana Simonovic, Counsel

Fabco Plastics Wholesale (Ontario) Ltd., )

Cathy Tadres, Claus Dieners ) Christine O’Donohue, Counsel

Respondents )

INTRODUCTION

1This Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended, (the “Code”), alleges, among other things, that the respondents discriminated against the applicant on the basis of disability and sex by terminating her employment while she was on maternity leave and by giving her a negative employment reference based on the applicant’s absenteeism, prior to her maternity leave, which she alleges was due to medical appointments necessitated by her pregnancy and pregnancy-related illness.

2The respondents deny the applicant’s allegations. Among other things, they maintain that the applicant’s pregnancy was not a factor in the decision to terminate her employment. The respondents submit that the applicant’s termination was due to company restructuring and the elimination of the applicant’s receptionist position.

3Moreover, the respondents request the early dismissal of the Application on the basis that the applicant signed a full and final release with respect to the subject-matter of the Application. An oral hearing was convened to give the parties an opportunity to call evidence and make oral submissions on the respondents’ Request.

BACKGROUND

4The applicant testified on her own behalf. Cathy Tadres, a personal respondent and the Human Resources Manager (“the HR Manager”) with the corporate respondent and Claus Dieners, a personal respondent and Operations Manager (“the Operations Manager”) with the corporate respondent, also testified. The applicant reported to Mr. Dieners.

5The applicant began working for the corporate respondent ( the “employer”) as a receptionist in or around August 2005.

6The applicant alleges that she informed the employer that she was pregnant in or around January 2007. The applicant alleges that from January 2007 onwards, she took a day or two off work per month for medical appointments or pregnancy-related illness. She claims she also took a week off in March 2007 after she slipped and fell while 27 weeks pregnant. The applicant submits that she commenced her maternity leave on May 25, 2007. She gave birth on June 23, 2007.

7According to the applicant, the employer attempted to contact the applicant by telephone a number of times commencing in February 2008. The applicant was aware that the employer was trying to reach her but did not return the employer’s calls since the employer did not leave a message and because she did not think that the employer should have been contacting her during her leave.

8The employer made further attempts to set up a meeting with the applicant about her return to work in early May 2008. The HR Manager testified that they had difficulty finding a mutually agreeable time to meet. On May 6, 2008, the applicant emailed the HR Manager, asking her to put in writing what she needed to tell her since they could not find a convenient time to meet.

9By letter dated May 13, 2008, which the applicant testified she received on May 15 or 16, 2008, the respondent employer advised the applicant that the applicant’s receptionist position had been eliminated due to the economic climate and restructuring at the company. The letter advised the applicant that there would therefore be no position to which she could return after her maternity leave. The respondent employer communicated an offer of three weeks’ pay “in lieu” to the applicant and invited the applicant to contact the respondent employer to “finalize matters”.

10The applicant testified that although the May 13, 2008 letter stated that her position with the company was being eliminated, and referred to an offer of three weeks “in lieu”, she thought that the employer would offer her another position. She testified that when she had started working for the respondent, she had been told that she would be able to move to other positions in the company. She testified that she thought that “finalizing matters” meant she would get another position with the company. She testified she “did not understand that a job with the company was no longer there.” However, she also testified that she thought “finalizing matters” meant that if the employer did not offer her another position with the company, then they “were going to terminate” her employment and would provide her with the monies she was owed, her “final paycheque”.

11The applicant testified that the week after she got the letter, she contacted the HR Manager by telephone and arranged to meet with her on May 23, 2008. The applicant’s testimony about her expectations and understanding after this telephone conversation with the HR Manager was inconsistent. She testified that after she spoke to the HR Manager, and even though the two women only exchanged small talk and arranged to meet, the applicant “understood” that her position with the company “would be eliminated” and that she “would no longer be with the company.” However, during cross-examination, she also testified, “Sometimes when you talk to someone, you get a gut feeling over the phone, ‘That’s it.’ But I always had a feeling I would get another position. I understood [I had] a right to return to a position after mat leave.”

12The applicant did not do anything to prepare for the meeting in advance, such as consult a lawyer.

13On May 23, 2008, the applicant went to meet with the HR Manager. The Operations Manager also attended the meeting. The applicant testified that someone at reception greeted her when she arrived, which she regarded as contradicting the statement in the May 13, 2008 letter that the receptionist position had been eliminated. The applicant was still on maternity leave and receiving Employment Insurance benefits at the time of the meeting.

14The applicant testified that the meeting was a “little comfortable” in the beginning but “not completely”. During the May 23, 2008 meeting, the applicant was told that her receptionist position was being eliminated due to the economy and that the employer was going to turn the telephone over to an automated service. The applicant testified that she asked the Operations Manager whether the termination of her employment had anything to do with her maternity leave. He said it did not. The respondent witnesses testified that they explained to the applicant that she was not the only person to be let go and that three other positions within the organization had also been eliminated for economic reasons.

15The applicant testified that at that point in the meeting, the respondent employer provided her with a “Full and Final Release”. This was the document which she reviewed and then ultimately signed during the meeting.

16In exchange for signing the Release, the respondent offered the applicant three weeks’ pay. At the hearing, the parties agreed that the applicant was owed two weeks’ termination pay pursuant to the terms of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“ESA”). The HR Manager testified that she arrived at the offer of three weeks’ pay by calculating how much the applicant was owed under the ESA and then offering an additional week “50 percent over and above” what the applicant was owed in exchange for the Release.

17The applicant testified that she believed that three weeks’ pay was what she was owed although that was never discussed.

18The applicant testified that she read through the one-and-a-half page Release in the meeting. She testified that it took her five or ten minutes to do so. The applicant testified that this was the first time she ever signed a Release and she felt very nervous. Although the applicant asserted that she did not understand the Release, she testified that she “understood it was final” and that she “would have no more ties to Fabco”.

19The applicant testified that the HR Manager asked her if she understood the Release. She testified that she was “very uncomfortable” and so she told the respondents that she did understand the Release just to “get out of the office.”

20The applicant testified that before she signed the Release, she asked the HR Manager whether her cheque would be “delayed” if she took the Release home and the HR Manager said “yes”. The applicant testified that she asked about taking the Release home so that she could think about it in a “nice calm manner” and because she was thinking about consulting a lawyer on the Release. The applicant testified that she had “somewhat of a reasonable working relationship” with the respondents and she thought they might give her “her cheque” for three weeks’ pay without requiring her to sign the Release. The applicant testified that she expected to get her cheque in the May 23, 2008 meeting, and it was clear from her evidence that if she did not receive it during that meeting, she would have considered it “delayed”.

21According to the applicant, she signed the Release when the HR Manager told her that her cheque would be delayed if she took the Release home. As to her reasons for doing so, the applicant testified, “I just knew it would take longer. If I took the Release home, it would take longer to finalize my ties with Fabco Plastics.” She testified that it would take “a little bit longer” to finalize her ties with the respondents because she would have to find a lawyer to give her advice on the Release. She testified that she did not know of a lawyer to contact for advice on the Release and that she did not have time to locate one. The applicant also testified, “I wanted to make that day the end of my contact with them.” The applicant testified that she signed the Release in the May 23, 2008 meeting because she wanted to get her “last and final paycheque” right then.

22The applicant’s evidence and submissions in this case were to the effect that she was notified of the termination of her employment at the May 23, 2008 meeting. “When I got the release, it was final that I was being terminated.” In her will-say statement, which admittedly is not sworn testimony, the applicant indicated that she would testify that “she was in an upset and anxious state of mind at the meeting due to the sudden termination of her employment.”

23The applicant testified that after she signed the Release, she was given her cheque and she left.

24The HR Manager and the Operations Manager gave a very different account of the May 23, 2008 meeting. The HR Manager testified that the applicant did not appear to be nervous, upset or stressed during the meeting. Both of the respondent witnesses testified that during the meeting, the HR Manager read the entire Release aloud, paragraph by paragraph, asking the applicant at the end of each paragraph whether she understood that paragraph and the applicant said she did. The applicant had her own copy of the Release in front of her. The HR manager testified, “At the end, I asked if she understood everything and she said she understood, yes.” The HR Manager and the Operations Manager testified that the HR Manager explained to the applicant that if she signed the Release, it meant that she could not “come back after the company anymore”. The applicant denied that the HR Manager read the Release aloud during the meeting or explained the significance of the Release.

25The respondents’ witnesses also testified that the HR Manager encouraged the applicant to take the Release home, think about it, and to get advice on it. The HR Manager testified that this was her normal practice. The HR Manager testified that she even advised the applicant that she might be able to get a 30-minute free legal consultation on the Release. The Operations Manager confirmed this. The applicant denied that she was offered an opportunity to get legal advice on the Release.

26The HR Manager and the Operations Manager both testified that the applicant said that she did not want to get legal advice before signing the Release. The HR Manager testified that when she “encouraged” the applicant to take the Release away with her, the applicant said that she would not be able to get any more money, she did not have time and she just wanted it finished and done. The Operations Manager confirmed this. He testified the applicant said that she did not need to take the Release away for legal advice, that she did not feel that she would be able to get any more money anyway and she just wanted the matter over and done with. The HR Manager denied that the applicant asked if her cheque would be delayed if she took the Release home. The Operations Manager confirmed that evidence.

27The applicant testified that she told the personal respondents that she “didn’t have time” to take the Release away “because it would have delayed things longer”. She denied telling the respondents that she did not think she could get more money from the company if she consulted a lawyer.

28The HR Manager testified that if the applicant had decided not to sign the Release on May 23, 2008, the corporate respondent would have provided her with a cheque for two weeks’ pay instead of three. The HR Manager testified that the cheque for three weeks’ pay which had been prepared the day of the meeting could have been easily cancelled and another cheque issued that day.

29The relevant portions of the Final Release which the applicant signed on May 23, 2008 state::

… I, Flora Perricone, …release and forever discharge FABCO PLASTICS WHOLESALE (ONTARIO) LIMITED, its … officers, directors, employees, servants and agents (hereinafter referred to as the “Releasees”) jointly and severally from any and all actions, causes of action… claims and demands for damages…, loss or injury of every nature and kind whatsoever arising which I may heretofore have had, may now have, or may hereinafter have in any way relating to the hiring of, employment by or the termination of employment of [the applicant] by the Releasees which specifically includes but is not limited to… claims under the applicable employment standards and human rights legislation…

I further represent that the Releasees have complied with the Ontario Human Rights Code in respect of my employment and/or the retirement or termination of such employment and I declare that I have no complaint against the Releasees under the Code.

…

It is understood and agreed that by entering into the Release, the [applicant] represents that she has received advice and that the terms of the Release have been completely read and that those terms are fully understood and voluntarily accepted by her.

30The applicant testified that at some point after the meeting, she re-read the Release. “Then I realized I did something wrong by signing the Release. I should have had someone read it. … I knew I signed something I probably should not have signed on that date.” The applicant did not contact the respondents after May 23, 2008 to express any regret about signing the Release or otherwise.

ANALYSIS AND DECISION

31Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), 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. The Tribunal has held that filing a human rights application after signing a full and final release in respect of the subject-matter of the application may constitute an abuse of the Tribunal’s process and, where that is the case, such applications should be dismissed.

The Parties’ Submissions

32The respondents submit that the applicant voluntarily signed a full and final Release in favour of the respondents, and, according to its clear wording, the applicant released the respondents from claims under the Code, among other things. The respondents submit that the Application thus constitutes an abuse of the Tribunal’s processes and ought not to be permitted to proceed.

33The applicant submits that her Application is not specifically barred pursuant to the provisions of the Code and relies on Bielman v. Casino Niagara, 2009 HRTO 123. She say that hers is precisely the type of case that the Tribunal ought to allow to proceed.

34The applicant acknowledges she signed a Full and Final Release in favour of the respondents which includes claims under the Code. However, the applicant submits that in order for the Release to prevent the applicant from filing a human rights Application against the respondents, there would have had to have been specific discussions and/or negotiations between the parties about the applicant’s human rights issues and consideration paid to her on account of those issues. The applicant submits that since this was not the case, it is not an abuse of process to permit her to proceed with her Application under the Code. The applicant also contends that she should not be bound by the Release because she signed it under psychological and economic duress and because she did not comprehend the nature of the Release at the time she signed it.

35The applicant further submits that even if I find that she is bound by the terms of the Release, it would not constitute an abuse of process for her Application to proceed with those of her allegations which arose after she signed the Release. The applicant submits that even if the Release is otherwise binding, to the extent that the applicant purported to contract out of her future rights under the Code, the Release is not binding.

Abuse of Process v. Bad Faith

36Among other decisions, the applicant relies on the Divisional Court’s decision in Pritchard v. Ontario (Human Rights Commission) 1999 CanLII 15058 (ON SCDC), 35 C.H.R.R. 39, which the applicant submits outlines the four factors which should be considered when looking at whether or not a human rights claim is barred by the signing of a full and final release. Although other decisions of the Tribunal have referred to the Court’s decision in Pritchard as useful, it is important to bear in mind that the issue before the court in Pritchard was whether the filing of a human rights complaint subsequent to the signing of a release was in “bad faith”. Under the terms of the new Code, the question is whether an Application filed after the signing of a Release is an “abuse of process”. Although these may overlap at times, they are different legal concepts.

37In Pritchard, supra, at para. 16, the court defined “bad faith” in terms of “moral blameworthiness” “encompassing conduct designed to mislead or pursued for an improper motive”. By contrast, the Tribunal has expressly distinguished the concepts of “abuse of process” and “bad faith”:

To call her endeavour an “abuse of process” is not to conclude that she has acted oppressively or abusively, or that she is driven by malice or bad faith. As I have indicated, abuse of process is a legal doctrine whose focus is the integrity and coherence of the adjudicative process. (Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 38. See also Hazel v. Ainsworth Engineered, 2009 HRTO 2180 at para. 47.)

38The Supreme Court of Canada has emphasized that the abuse of process doctrine focuses less on the private interests of the parties, and more on the integrity of the adjudicative process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CUPE), as cited in Campbell, supra, at para. 38.

39The applicability of the abuse of process doctrine in the Release context is readily apparent when one considers that one of the principles on which the doctrine is based is the principle of finality, described as “so crucial to the proper administration of justice.” (Donald J. Lange, The Doctrine of Res Judicata in Canada, Markham, Ontario: Butterworths, 2000, at 347-48, as cited in CUPE, supra, at para. 38). When two parties contract to settle legal matters between them, the principle of finality demands that the contract be given effect and prevents parties from litigating settled matters, unless there are compelling reasons to set the contract aside altogether. Thus, in determing whether it would be an abuse of process to permit the Application to proceed, the question is not whether the applicant filed her Application in bad faith, but whether the contract (i.e. Release) she entered into is legally binding, and final. The applicant advances a number of arguments why she ought not to be bound by the Release. I now turn to those.

Where parties did not negotiate human rights issues

40The applicant submits that the respondents did not discuss or negotiate human rights issues with her prior to the applicant releasing the respondents from claims under the Code. The applicant further submits that the Release itself does not expressly contemplate the resolution of the applicant’s human rights issues, for example, by paying the applicant a sum of money specifically on account of alleged human rights violations. Accordingly, the applicant submits that her human rights issues have never been settled and she is not barred from pursuing her claims under the Code.

41Contrary to the applicant’s submission, the evidence suggests that the parties did turn their minds to whether the applicant’s termination of the applicant’s employment was based on a prohibited ground under the Code before the Release was signed. At the beginning of the May 23, 2008 meeting, the applicant asked the personal respondent, Mr. Dieners, if the termination of her employment had anything to do with her maternity leave. He told her it did not. This suggests that human rights issues were considered before the Release was signed.

42Moreover, the Release itself specifically addresses human rights issues. In it, the applicant clearly and unambiguously releases the respondent from “claims under the applicable … human rights legislation…” Even more than that, pursuant to the terms of the Release she signed, the applicant “represents that the [respondents have] complied with the Ontario Human Rights Code” and “declares that [she] ha[s] no complaint against the [respondents] under the Code.” The applicant submitted that it was not reasonable for her to think that there was finality in respect of her human rights issues because they were not negotiated between the parties. Respectfully, however, that submission simply does not accord with the plain and ordinary meaning of the Release the applicant read and signed.

43In Better Beef Ltd. v. MacLean, (2006), 2006 CanLII 17930 (ON SCDC), 80 O.R. (3d) 689, at paras. 46-48, the Divisional Court confirmed the well-established principle that where “the literal and ordinary meaning of the release” demonstrates a clear intention on the part of the parties to fully and finally release the respondents from all claims, it should not be easily disturbed. I accept that proposition. Even if the parties to this Application did not expressly negotiate human rights issues or attribute a portion of the settlement monies to the resolution of alleged human rights violations, that does not detract from the plain wording of their agreement.

44The literal and ordinary meaning of the Release demonstrates an intention on the part of the parties to have the applicant release the respondents from claims under the Code. Giving legal effect to the plain and ordinary meaning of the Release, the applicant is prevented from pursuing her Application to the Tribunal, unless there is some other reason that the applicant ought not to be bound by the Release.

45The applicant also submits that the Release ought not to preclude her from pursuing her human rights Application because the amount of financial compensation she received in consideration for the Release – one weeks’ pay over and above her statutory entitlement - was not sufficient to settle her human rights claim.

46Although the applicant submits that the Tribunal awards applicants monetary compensation in the “tens of thousands”, and suggests this as a benchmark, this sort of compensation is awarded only in successful cases (and not all of them) where the applicant has discharged her onus of proof. There are many other cases which are dismissed by the Tribunal and no remedy is awarded. Against this legal backdrop, it would be inappropriate to require a substantial amount of consideration in order to obtain a valid release from any and every claim under the Code, which is the thrust of the applicant’s submission. The reality is that people decide to sign Releases and settle legal matters between them for many reasons, only one of which is what they might be awarded if they were to pursue legal action against the Releasee and succeed at the end of the day.

47The applicant did not point me to any authorities in support of the proposition that otherwise binding Releases may be set aside on the basis that the consideration is not adequate for the settlement of a human rights claim. Pritchard, supra, speaks to whether filing a human rights complaint where there has been “little or no consideration” for the Release is in “bad faith”, but it does not stand for the proposition that a Release may be set aside where there is insufficient consideration, which is the real issue.

48As noted above, where a contract is voluntarily entered into, the agreement of the parties ought to be given legal effect unless there is a legal basis upon which it should be set aside. The applicant has not persuaded me that the fact that she received only a week’s pay over and above her statutory entitlements in exchange for the Release is a basis upon which the Tribunal ought to set the parties’ agreement aside.

Duress

49The applicant submits that she ought not to be bound by the May 23, 2008 Release because she signed it under emotional and psychological pressure and economic duress.

50A contract is enforceable because it represents the voluntary agreement of the parties to it. Where “duress” is put forward as the basis for vitiating a settlement agreement, the party claiming distress is really stating that he or she entered the agreement against his or her own free will, and that the contract does not represent a voluntary agreement. Black’s Law Dictionary, 8th ed. (St. Paul, MN: Thomson West, 1999), gives the following as one of the definitions of “duress”:

Broadly, a threat of harm made to compel a person to do something against his or her will or judgment, especially a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition.

51“Economic duress” is also specifically defined in Black’s, not in terms of a party’s financial circumstances per se, but the threat of financial harm:

… an unlawful coercion to perform by threatening financial injury at a time when one cannot exercise free will.

52The Ontario Court of Appeal described the elements of economic duress in a recent case, Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 at pars. 8-9:

There is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis.

However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to “a coercion of the will” of the party relying on the concept. See: Stott v. Merit Investment Corp., 1988 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. C.A.), at para. 89.

53In Stott, supra, the court held that in order for economic duress to be found, the party whom is being illegitimately pressured must be put in a position where he has no “realistic alternative” but to submit.

54The applicant argues that she was subject to economic duress when she signed the Release because the respondent resorted to an illegal threat to pressure her into signing the Release. Specifically, the applicant relies upon the case in Augustine v. Nadrofsky Corp. (1986), 17 O.A.C. 297 (Div. Ct.) for the proposition that threatening to withhold her cheque, which included two weeks’ termination pay under the ESA, was a form of “illegitimate pressure” on the applicant such that she was forced to sign the Release against her will. In Augustine, supra, the Divisional Court found that the employer’s insistence that a discharged employee sign a Release or go without pay which had been earned and which pay was “due” constituted sufficient coercion to vitiate the legal effect of the Release. The imbalance of bargaining power and the employee’s young age (23) and education (grade 11) figured into the court’s reasoning.

55I certainly agree that it would be illegitimate for an employer to threaten to withhold monies which rightfully belonged to an employee, in order to get that employee to release the employer from legal claims. Ultimately, however, I am not persuaded, on the facts of this case, that the respondent pressured the applicant into signing the Release by illegitimately threatening to withhold termination pay to which she was entitled on May 23, 2008.

56First, the evidence in this case fell somewhat short of establishing that the applicant’s termination pay was “due” on May 23, 2008 such that any threat to delay the payment beyond that date would have been “illegitimate”. The applicant’s evidence and submissions were to the effect that she was terminated during the May 23, 2008 meeting, in which case, pursuant to the ESA, the termination pay would not have been “due” on May 23, 2008, but, as the respondent submits, seven days later or on the applicant’s next pay day whichever was later: ESA, s. 11(5). If the applicant was not entitled to her termination pay on May 23, 2008, then the alleged “threat” to delay payment of the termination pay beyond May 23, 2008 (for how long was never discussed by the parties or questioned by the applicant) would not have been “illegitimate” at all.

57Moreover, I am not persuaded on the evidence that the respondents threatened to withhold the applicant’s termination pay if the applicant did not sign the Release in the May 23, 2008 meeting. The applicant testified that she asked the respondents if her cheque (for three weeks’ pay) would be delayed if she took the Release home and the answer from the HR Manager was simply “yes”. This was the only evidence of the alleged illegitimate threat to withhold or delay monies to which the applicant was statutorily entitled.

58Both of the respondent witnesses denied the applicant indicated any interest in taking the Release away for further reflection or advice. On the contrary, they testified that the applicant declined the opportunity to take the Release away for legal advice and chose to sign the Release at the meeting so that she could have the whole matter over with.

59The question to be determined is whether the applicant was encouraged to take the Release away for further reflection and advice, as the respondent witnesses testified, or discouraged from doing so (by way of an illegal threat) as the applicant testified. It falls to me to determine this by assessing whether the applicant’s or the respondents’ account is in greater “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.”, Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). In accordance with the principle “she who alleges must prove”, the applicant bears the onus of proving on a balance of probabilities that she signed the Release under economic duress, which in this case includes proving that the respondents threatened to delay her termination pay.

60Having considered the totality of the evidence, I prefer the respondents’ evidence that the applicant was encouraged to take the Release away but chose not to do so. The respondents’ witnesses’ evidence was that after reading the Release aloud and receiving the applicant’s assurance that she understood it, the HR Manager suggested to the applicant that she take the Release away to get legal advice. The personal respondents testified that the applicant said that she did not want to do that because she did not think she would not get any more money and she just wanted the matter concluded.

61This was fairly consistent with the applicant’s evidence about why she signed the Release at the May 23, 2008 meeting. The thrust of the applicant’s evidence was that she signed the Release on May 23, 2008, not because she had no realistic alternative, but because she wanted her relationship with the respondents at an end. She felt uncomfortable dealing with the respondents and did not want to have anything to do with the respondents after the May 23, 2008 meeting. She testified that she did not want to take the Release away and seek legal advice because it would take “a little bit longer” to finalize her ties with the respondents. She wanted to make May 23, 2008 the last day of her contact with the respondents and so she decided to finalize matters by signing the Release and collecting her cheque at the meeting.

62Moreover, the applicant acknowledged during cross-examination that she told the respondents during the May 23, 2008 meeting that “she didn’t have time” to take the Release away. This was consistent with the HR Manager’s evidence. She testified that she did not have time in the sense that taking the Release away for advice would have delayed things longer since she did not know who to take the Release to or how long that process might take. If the option to take the Release home was never put to her during the meeting, there would have been no reason for the applicant to tell the respondents that she did not have time for that. The applicant’s evidence on this point is consistent with the respondents’ account of what transpired at the meeting.

63By the same token, the applicant’s evidence that she signed the Release during the meeting because otherwise it would take longer to finalize her ties with the employer is not consistent with her position that she wanted to take the Release away but was pressured not to by way of an illegal threat to delay her termination pay.

64On balance, I prefer the respondents’ version of events of what transpired at the May 23, 2008 meeting as being in greater harmony with the preponderance of the evidence. I therefore find that the respondents encouraged the applicant to take the Release away for legal advice and the applicant declined to do that because she wanted to put the matter behind her; and I cannot accept the contrary proposition that the applicant actively sought to take the Release home but was dissuaded from doing so by an illegal threat to delay her statutory termination pay.

65The applicant has not proved that the respondents illegitimately threatened to delay her termination pay and thereby pressured her into signing the Release. The applicant has therefore not proved that she signed the Release under economic duress.

66Nor am I satisfied that the applicant signed the Release under psychological or emotional duress. The applicant may very well have been nervous and upset during the May 23, 2008 meeting but the evidence falls short of showing that she had no realistic alternative but to sign the Release because of emotional or psychological pressure which is what a finding of emotional or pyschological duress would entail.

67The evidence shows that the applicant made a choice to sign the Release on May 23, 2008 because of her desire to have her relationship with the respondents at an end. This was not an invalid reaction in all of the circumstances. However, having consciously decided not to make the effort required in order to obtain legal advice and to sign the Release to finalize matters with the respondents, the applicant is bound by her choice. The evidence in this case does not support the conclusion that the applicant’s consent to the Release was extracted from her because of any threat to illegally delay her termination pay under the ESA or threat of emotional or psychological harm, which is what would be required in order to set the Release aside on the basis of duress.

Whether Applicant Understood the Release

68The applicant argues that she ought not to be bound by the Release because she did not understand it. The applicant submits that at the time she signed the release she was young and unsophisticated in legal matters. She submits that she was not provided with a copy of the Release or told about it in advance of the May 23, 2008 meeting. She denies that the respondents offered her an opportunity to get legal advice on the Release before she signed it or explained what the Release meant.

69I accept that the applicant is not sophisticated in legal matters and that the Release, although not long, is written in “legalistic” language. However, if, as the applicant contends, she chose to sign the Release without ensuring that she understood it, then she is responsible for that choice. There is no question that the applicant had the capacity to understand the Release. She testified that when she read the Release over on her own, later, she realized its significance. A party to a legal agreement cannot enter into it without taking the time and effort to understand it and then rely on her own actions as the basis upon which to resile from the agreement. This would be unfair to the respondents who were entitled to rely in good faith on the applicant who testified that she expressly told the respondents that she did understand what she was agreeing to.

70In any event, the applicant’s testimony leads me to conclude that she did understand the gist of the Release when she signed it. When asked what she thought she was signing, she testified that she knew the Release meant that everything was final and she would have no more ties to the respondents. Also, if there is one part of the Release that is abundantly clear, it is the part with respect to human rights. In plain language, the applicant “represent[ed] that the [respondents had] complied with the Ontario Human Rights Code in respect of [her] employment and/or the retirement or termination of such employment and … declare[d] that [she] ha[d] no complaint against the [respondents] under the Code.” This is clear and unambiguous language; and the applicant testified she read it and told the respondents that she understood it before signing the Release. In these circumstances, I am not persuaded that the applicant could not or did not understand that she was giving up her right to pursue the respondents under the Code by signing the Release.

Prospective Nature of the Release

71Most of the allegations in the Application relate to events which allegedly occurred prior to the applicant signing the Release on May 23, 2008. Part of the allegations, however, post-date the signing of the Release by the applicant. Specifically, the applicant alleges that in or around November 2008, the respondents gave her a negative employment reference because of absences from work due to her pregnancy.

72The respondents argue that the entirety of the Application, including that part of it which relates to events allegedly occurring after the Release was signed, ought to be dismissed as an abuse of process because the Release covers claims which the applicant ”may hereinafter have in any way relating to the hiring of, employment by or the termination of employment of the applicant by the respondent”, including claims under the Code.

73The applicant submits that in order for me to find that it would be an abuse of process for her to pursue a remedy in respect of the discrimination which allegedly occurred after she signed the Release on May 23, 2008, I would have to find that when she signed the Release, she relinquished her right not to be discriminated against in the future. This, she argues, I cannot do. The applicant submits that although a person may agree not to proceed with a human rights claim based on past events, she cannot contractually agree to put herself beyond the reach of the Code’s protection in future: Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145 at 158. She submits that any contract which purports to have this effect is void as contrary to public policy: Ontario Human Rights Commission v. Etobicoke (City), [1983] 1 S.C.R. 202 at 213-214.

74I agree with the applicant. As a matter of public policy, parties are encouraged to settle their disputes, without litigation, including disputes under the Code. However, agreeing not to file or pursue a claim based on past events is not the same as contracting to remove oneself from the Code’s protection in future. It is by now trite law that the rights individuals enjoy under the Code are quasi-constitutional in nature. It would be contrary to public policy to permit individuals to relinquish their future right to be treated in accordance with the Code, and any agreement purporting to have that effect will be null and void. To the extent that the applicant, by signing the May 23, 2008 Release, purported to agree not to claim against the respondents for future violations of her human rights, that aspect of her agreement is unenforceable, as contrary to public policy.

75The respondents makes two other submissions that the Tribunal ought to dismiss that part of the Application which relates to events which allegedly occurred after the Release was signed. First, they submit that there was no employment relationship between the applicant and the respondents in November 2008 and therefore they could not have discriminated against the applicant “in respect of employment” at that time. Second, the respondents submit that there was nothing discriminatory in the respondents’ alleged comments about the applicant. These submissions may be relevant to the merits of the Application but are not relevant to the question at hand, namely the applicant’s ability to give up her future rights under the Code by signing a Release.

76The respondents also submit that the applicant ought not to be permitted to proceed with the part of her Application which relates to the alleged negative employment reference because the applicant could seek a civil remedy in tort in respect of such conduct. They rely on Drouillard v. Cogeco Cable Inc., 2007 ONCA 322 in support of this proposition.

77This argument cannot succeed. As the applicant quite rightly points out, her right to file an Application under the Code is not removed by the mere existence of other legal avenues which she might have pursued. There are provisions in the Code which bar an Application where the applicant has commenced a civil proceeding seeking a remedy in respect of the alleged Code infringement (s. 34(11)) and which give the Tribunal jurisdiction to dismiss all or part of an Application where the substance of the Application has been appropriately dealt with in another proceeding (s. 45.1). However, nothing in the Code gives the Tribunal jurisdiction to refuse to hear an Application on the basis that it could have been or could yet be pursued in a different legal forum.

78The part of the Application which relates to alleged violations of the applicant’s human rights subsequent to the signing of the Release may proceed; it is not an abuse of the Tribunal’s process.

Conclusion

79The applicant agrees that all of the respondents are covered by the Release, if I find it to be binding.

80I have found that the applicant freely entered into a full and final Release with the respondents on May 23, 2008. Based on the clear and unambiguous language in the Release, the applicant released the respondents from claims under the Code. The prospective nature of the Release aside, the applicant has not presented any basis upon which to find that she ought not to be bound by the Release as it relates to the events which occurred on or before May 23, 2008. It would be an abuse of the Tribunal’s process to permit the part of the Application which relates to events which occurred prior to the signing of the Release to proceed. That part of the Application is dismissed.

81To the extent that, in signing the Release, the applicant purported to release the respondents from claims based on future violations of her rights under the Code, that part of the Agreement is contrary to public policy and is not enforceable. The part of her Application relating to alleged violations of her human rights after she signed the Release will continue. The respondents are hereby directed to file their full Response to this part of the Application within 21 days of the date of this decision.

82I am not seized.