Monteiro v. Inspec-Sol Inc., 2010 HRTO 2281

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Catherine Monteiro

Applicant

-and-

Inspec-Sol Inc., Sanja Mehta, Renato Pasqualoni and Karl Roechner

Respondents

DECISION

Adjudicator: Naomi Overend

Date: November 17, 2010

Citation: 2010 HRTO 2281

Indexed as: Monteiro v. Inspec-Sol

APPEARANCES

Catherine Monteiro, Applicant ) Self-represented

Inspec-Sol Inc., Sanja Mehta, )

Renato Pasqualoni and Karl Roechner, ) Sebastien Lorquet, Counsel

Respondents )

ii

1The applicant filed this Application on May 12, 2009, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of race, disability, family status and age. The allegations in the Application concern her employment with and ultimate termination from Inspec-Sol Inc. (“Inspec-Sol”).

2The respondents seek early dismissal of this Application on the basis that the applicant signed a full and final release, releasing the respondents from, among other things, any claims under the Code. This was part of a settlement, in which the applicant received additional monies in consideration for her executing the release.

3The applicant takes the position that her Application should not be dismissed on the basis she was under duress at the time she signed the release. An in-person hearing was held, at which the applicant testified and the parties made submissions on the respondents’ Request. For the reasons discussed below, I find that the Application should be dismissed on the basis that it would be an abuse of the Tribunal’s process to proceed with it

FACTS

4The applicant was employed at the Mississauga office of Inspec-Sol in a clerical position. The three individual respondents were also employees of Inspec-Sol.

5The respondents allege that the decision was made to terminate the applicant’s employment in response to the applicant’s reaction to a restructuring that had taken place a few months earlier. The applicant alleges that the decision was made for discriminatory reasons.

6In any event, Inspec-Sol called the applicant into a meeting on April 6, 2009, and advised her of the company’s decision. She was given a letter which outlined that the company was prepared to pay her five weeks salary, in addition to the 11 weeks she was entitled to under the Employment Standards Act 2000, S.O. 2000, c.4, as amended, but that this was contingent on her signing a full and final release.

7The applicant said she was in shock when she was told she was being let go. The letter given to her that date said her attitude was unprofessional and her behaviour uncooperative, which she did not understand. She asked to speak to Renato Pasqualoni (“Renato”), who was present at the meeting, about what the letter meant, but he said that he did not have time to speak to her then, and that they should speak “later.”

8The applicant said that she was so upset by the decision that when she phoned to tell her husband about it, he arranged to have their daughter to pick her up from work and take her to her parents’ home so that she would not be alone. She said she continued to be upset and did not sleep that week.

9That evening, the applicant had a pre-arranged appointment with her doctor, which she attended. The applicant saw another doctor (not her regular doctor) on the Wednesday (i.e., April 8, 2009), who told her to consult with “human rights.” Neither doctor testified or provided any medical evidence about the applicant’s mental state during this period.

10The applicant discussed the documents with a lawyer. Her evidence was not clear about whom she consulted or what was said, although she did suggest that a lawyer told her that the release would not prevent her from filing a human rights application. She also testified that before she signed the release, she spoke with the Ministry of Labour and the WSIB (at the time, she had a claim for a work-related injury), the latter telling her to consult with “human rights.”

11The applicant acknowledges that she was given a week to consider Inspec-Sol’s package, which would have given her until Monday, April 13, 2009. Instead, she came to the Mississauga office on Thursday, April 9, 2009 and asked to again speak with Renato. When she found out that he was not available to speak to her, she asked if “Tom” could witness her signature. He agreed and she signed the release that day.

12The applicant testified that she had wanted to speak to Renato about the reasons for her termination before she signed the release, but that he did not make himself available on either of the two occasions she asked to speak to him. She acknowledged that she was told to phone and make an appointment, which she did not do, but was hoping that Renato would initiate the contact or at least make himself available when she asked to speak with him.

13With respect to the release, the applicant said, on cross-examination, that she did not understand the contents fully (in particular, the part about her not making any future claim or initiating proceedings), but that she did understand the final paragraph, which contains an acknowledgement that she read over and understood the release and that she had the opportunity to seek independent legal advice.

14She also acknowledged on cross-examination, that she did not say to anyone at Inspec-Sol at the time she was signing it, or in the immediate aftermath, that she was signing, or had signed, the release under duress. On Monday, April 13, 2009, she wrote to Inspec-Sol in order to file a claim for a medical receipt, but said nothing about the release.

15She testified she came to regret her decision after speaking with someone from the Human Rights Legal Support Centre, but did not return the money to Inspec-Sol.

DECISION

16Section 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 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.

17The first issue one must consider is whether the release on its face prohibited the applicant from making a claim under the Code. The second paragraph of the release makes specific reference to the Code:

I do hereby declare and acknowledge that the consideration set out above satisfies all obligations of the Releases, arising from or out of my employment with INSPEC-SOL or the termination of that employment, including without limitation any obligations pursuant to the Employment Standards Act and the Human Rights Code. Without limitation, I covenant and undertake that I will not file or advance any claims or complaints under the Employment Standards Act (including claims in respect of pay in lieu of notice and/or severance pay) and the Human Rights Code arising out of my employment with INSPEC-SOL nor the termination of that employment.

18In light of the clear language in the release, the Tribunal must next consider whether there is some reason for not requiring the applicant to be bound by what would otherwise appear to be a binding promise to not bring an application before the Tribunal. Some of the reasons discussed in the Tribunal’s jurisprudence include duress (both economic and psychological), fraudulent misrepresentation on the part of the respondent and the lack of capacity by the applicant to understand the terms of the release.

Duress

19It is not uncommon for parties before the Tribunal to argue that they entered into written settlements because of financial hardship, and that such agreements ought to be set aside on the basis that they were entered into under “duress,” economic or otherwise. 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.

20Black’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.

21The Ontario Court of Appeal described the elements of duress in a recent case, Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 at para. 9:

… [N]ot 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. In Stott, the court held that in order for economic duress to be found, the party whom is being illegitimately pressured must be put in position where he has no “realistic alternative” but to submit. [Emphasis added]

22The applicant’s testimony does not reveal that she was subject to pressure of this nature. She was, no doubt, extremely upset that her employment with the company had come to this. She was also distressed that she did not get the opportunity to hear the reasons why she was being fired from Renato, but the applicant fails to explain why failing to get an explanation for her termination would amount to duress.

23There is nothing about the manner in which the respondents conducted themselves that would suggest that there was a “coercion” of her will. The company put the description of the package in writing and gave her a week to consult with anyone about its terms. It was the applicant who decided to approach the company three days later, and ask if a company representative could witness her signature.

Capacity to Understand the Release

24The applicant testified that she did not really understand the language of the paragraph in which she agreed to not file a claim under the Code. The applicant did not call any evidence, however, that she was incapable of understanding the gist of this aspect of the release; indeed, I observed in her testimony that she understood what was at issue, if not all of the specific terminology.

25Nor did there appear to be an issue that the applicant was temporarily incapable at the time she signed the release. Although she saw two doctors during this time, she did not call medical evidence that her psychological state was such that it would have interfered with her capacity to understand what she was doing.

26From the applicant’s own testimony, it is clear that she consulted with at least one lawyer, the Ministry of Labour and the WSIB (as well as family members and her doctors) prior to signing the release. That is, she took advantage of the three days between when she received and when she signed the release to seek out professional help. If the applicant was having difficulty understanding the effect of the release, she had the opportunity to ask someone to help her understand what she was giving up by signing the release.

27The issue of whether the applicant had the capacity to understand is distinct from the issue of whether she actually understood the release. In this case, the applicant suggests that she did not appreciate what she was giving up at the time she signed the release. I adopt the statements made by the Tribunal in Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, at para. 69, concerning this assertion:

[I]f, as the applicant contends, she chose to sign the Release without ensuring that she understood it, then she is responsible for that choice…. 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.

28In summary, the applicant was capable of understanding the terms of the release. She was not under duress at the time she executed that document. To allow this Application to proceed in light of the clear language of the release prohibiting such a claim would, in my view, amount to an abuse of the Tribunal’s process.

29The Application is dismissed.