HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Lachance

Applicant

-and-

Honda of Canada Mfg., a Division of Honda Canada Inc.

Respondent

DECISION

Adjudicator: Alison Renton

Date: August 20, 2010

Citation: 2010 HRTO 1731

Indexed as: Lachance v. Honda Canada

APPEARANCES

Michael Lachance, applicant ) On his own behalf

Honda of Canada Mfg., )

a Division of Honda Canada ) Jayson Rider and

Inc., respondent ) Shawna Kadykalo, counsel

ii

[1] The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), on September 4, 2009 alleging discrimination on the ground of disability in employment. The respondent filed a partial Response to the Application requesting early dismissal on the ground that the applicant signed a full and final release with respect to the same matter.

[2] By letter dated November 3, 2009, the Tribunal wrote to the applicant enclosing the Response and indicating that he could respond to the request for early dismissal within 14 days. The applicant did not respond to the Tribunal’s letter.

[3] By Interim Decision dated December 24, 2009, 2009 HRTO 2260 (“the December Interim Decision”), the Tribunal directed the applicant to file submissions in response to the respondent’s request for early dismissal within 21 days of the December Interim Decision and in his submissions explain, among other things, why, in his view, he is entitled to pursue the Application given the signed release. The applicant did not file any submissions or otherwise communicate with the Tribunal following the December Interim Decision.

[4] A subsequent Interim Decision dated January 28, 2010, 2010 HRTO 196 (“the January Interim Decision”), was issued. Again the Tribunal directed the applicant to file submissions in response to the respondent’s request for early dismissal. The applicant was given 10 days from the date of the January Interim Decision to advise the Tribunal, in writing, of his intentions. If he intended to continue with his Application, he was directed to file the submissions required by the Tribunal’s December Interim Decision, together with an explanation of why he did not file submission in accordance with the December Interim Decision.

[5] The applicant filed a Reply dated February 3, 2010 with the Tribunal stating that it was his intention to proceed with his Application notwithstanding his signing of the release. The applicant states in the Reply that he understands that he accepted a sum of money as a settlement with the respondent, but “believes” the release is not binding. He submits that he was discriminated against on the basis of mental disability when he was terminated. He alleges the respondent did “nothing to accommodate [him]”, “took full advantage of [his] vulnerability”, “avoided dealing with [his] disability by having [him] sign [his] Human Rights away” and “completely averted their responsibility and obligations”.

[6] Following receipt of the Reply, the Tribunal issued an Interim Decision dated March 11, 2010, 2010 HRTO 529 (“the March Interim Decision”), scheduling a conference call hearing to hear submissions on the issue of whether the Tribunal should dismiss the Application as a result of the applicant having signed a release. The parties were given an opportunity to file any written materials, including written submissions, documents or case law, or facts not contained in the Application, Response or Reply with the Tribunal and send to the other party. The respondent provided additional material to the applicant and the Tribunal, but the applicant did not.

[7] The conference call hearing was held on August 18, 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

[8] Subsequent to the applicant’s termination meeting in February 2009, the respondent gave the applicant a letter dated March 3, 2009 (“the letter”) offering him a termination compensation package (“the offer”) in exchange for the applicant executing a release. The release was attached to the offer. The letter requested that the applicant indicate his acceptance of the offer by signing and returning one copy of the letter and the release before the end of the day on March 10, 2009. The letter concluded with a sentence that stated “ACKNOWLEDGED AND AGREED to this ___ day of ____, 2009” with the applicant’s name and a line for his signature.

[9] The release contained the following language:

IN CONSIDERATION of the terms outlined in the letter to me dated March 3, 2009, from HONDA OF CANADA MFG., a Division of HONDA CANADA INC., I, MICHAEL LACHANCE, on behalf of myself, my heirs, executors, administrators, successors and assigns, hereby release and forever discharge HONDA OF CANADA MFG,, HONDA CANADA INC., SUN LIFE ASSURANCE COMPANY OF CANADA, their employees, officers and agents from all complaints, grievances, actions, causes of action, claims and demands of every kind arising out of or in any way relating to my employment or the termination of my employment with HONDA OF CANADA MFG. I specifically acknowledge there has been no violation of the Ontario Human Rights Code with respect to my employment or the termination of my employment with HONDA OF CANADA MFG. I understand that by signing this Release, I am waiving any right to file a complaint pursuant to the Human Rights Code.

I DECLARE that the terms of this Release are fully understood by me and agreed to voluntarily, without duress and having had the opportunity to seek independent legal advice.

[10] The applicant signed the letter and the release on March 23, 2009 and sent them to the respondent.

POSITION OF THE PARTIES

[11] The applicant requests that his Application not be dismissed because he feels that he was discriminated against because of mental health issues. He stated that he had been off work because of his mental health conditions and depression, had returned to work for five months before he was terminated, his medications were working fine and the process was going smoothly and then he was terminated and “thrown into a loop”. He stated in his submissions during the conference call and in his Reply that he was not provided with a reason for his termination about which he was very upset.

[12] A week or two after his termination, the applicant saw a lawyer about the offer and about signing the release. He claimed that he did not get good service from the lawyer. The lawyer did not give him much help, told him it would be better if he signed the release, and did not elaborate, provide feedback or answer the applicant’s questions. The applicant submitted that he was not in the right frame of mind at the time of signing the release and was taking a “slew” of medications at the time which affected his thinking. He explained that with his medical condition, he is very indecisive, will decide something one way and then the next minute change his mind. When probed by the Tribunal to explain how his medications affected his ability to sign the release, the applicant said that he had taken anti-depressant and anti-anxiety medication, in addition to medication for blood pressure and cholesterol. He did not recall the details of his medications, but stated that he was sure his doctor had that information.

[13] The respondent’s counsel submitted that the release should be binding upon the parties and the Application should be dismissed. The release covered the subject matter of the Application. The Application is specifically about the applicant’s termination, which he alleges was discriminatory, and the release specifically references the termination and the Code. The amount of the offer was more than the applicant’s entitlement under the Employment Standards Act, 2000, S.O. 2000, c. 14, as amended (“ESA”). The applicant, as demonstrated by his Reply and his submissions during the conference call, is intelligent and articulate, understands the legal issue raised in the Response and understood, at the time he signed the release, what he was signing. The applicant signed and sent back the release about three weeks after his termination, notwithstanding the deadline set out in the offer. The applicant has not demonstrated any duress as defined by the Tribunal’s jurisprudence and has not submitted any medical documentation to substantiate his position that his judgement was impacted by the medication he was taking.

ANALYSIS AND DECISION

[14] It 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 his former employer. 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 respondent to defend against the allegations of discrimination.

[15] Section 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. 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.

[16] First, it is necessary to consider whether the release at issue encompassed claims under the Code. The release includes broad standard language releasing the respondent “…from all complaints, grievances, actions, causes of action, claims and demands of every kind arising out or in any way relating to my employment or the termination of my employment”. Further, it states: “I specifically acknowledge there has been no violation of the Ontario Human Rights Code with respect to my employment or the termination of my employment….I understand that by signing this Release, I am waiving any right to file a complaint pursuant to the Human Rights Code”. 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.

[17] There 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, 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 the termination of employment could be violated.

[18] There is also no indication that the applicant was under duress or coercion to sign the release. The applicant not only had the opportunity to seek legal advice, but he actually obtained legal advice about signing the release, although he now raises concerns about the quality of that advice. Despite the offer stating that the release was to be signed and returned by March 10, the applicant signed the release on March 23, 2009 and subsequently returned it to the respondent. In his Reply, the applicant demonstrated an understanding of what he had signed when he submitted “I understand that I have accepted a sum of money but believe this contract is not binding” and requested “…the chance to plea[d] my case”.

[19] In Rivard v. George Brown College, 2009 HRTO 2212, the Tribunal stated that an applicant would need to meet a high threshold to establish that he or she did not appreciate the significance of signing a release by reason of mental illness or disability. At para. 29, the Tribunal stated:

I do not accept the applicant’s evidence that she was not capable of understanding what she was signing when she signed the release. Although the applicant presented some medical evidence that she was experiencing increased sleepiness at the time she signed the release, she did not present anything even approaching the kind of medical evidence which would be required to establish that she was prevented from understanding the significance of the release by reason of mental illness or disability.

[20] In this case, the applicant has asserted that he was not was not in the right frame of mind at the time of signing the release and was taking a “slew” of medications at the time, which affected his thinking. However, he did not provide any medical documentation to substantiate this position, despite the March Interim Decision giving the parties an opportunity to provide further written material or documentation or facts. Further, his action of obtaining legal advice before signing the release demonstrates a person rationally exercising his will in deciding whether to accept a severance offer.

[21] In the circumstances of this case, to proceed with the Application in the face of the release signed by the applicant would be an abuse of the Tribunal’s process. The applicant entered into the settlement agreement freely and understood that by doing so, he would not be able to make a claim against the respondent. The parties signed an agreement that resolved all issues relating to the applicant’s employment and termination of employment, including his human rights. As stated by the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at para. 35:

There is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever form it is brought, the matter is at an end.

[22] For these reasons, the Application is dismissed.

Dated at Toronto, this 20^th^ day of August, 2010.

“Signed by”

Alison Renton

Vice-chair```