Arora v. Weston Bakeries, 2010 HRTO 2283

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amit Arora

Applicant

-and-

Weston Bakeries Ltd. and Ross Moore

Respondents

-and-

Milk and Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647

Intervenor

DECISION

Adjudicator: Naomi Overend

Date: November 18, 2010

Citation: 2010 HRTO 2283

Indexed as: Arora v. Weston Bakeries

APPEARANCES

Amit Arora, Applicant ) J. Wayne Pitterson, Representative

Weston Bakeries Ltd. and Ross Moore ) Kate Zavitz, Counsel

Respondents )

Teamsters Local 647, Intervenor ) Gail Misra, Counsel

1The applicant filed this Application on April 1, 2010, 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 place of origin, ethnic origin and disability. The allegations in the Application concern his employment with and ultimate termination from Weston Bakeries Ltd. (“Weston”).

2The respondents seek early dismissal of the 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. The applicant takes the position that his Application should not be dismissed on this basis because he was under duress at the time he signed the release.

PRELIMINARY MATTERS

3An in-person hearing was held to determine this issue on October 28, 2010. At the outset of the hearing, Mr. Pitterson requested an adjournment on the basis that the applicant’s named representative, Glen Morrison, was unable to attend that day. He explained that Mr. Morrison was required to attend another matter, which apparently had been held over.

4This was objected to by the respondent and intervenor, as they had not received notice of the request, and had each had arranged to have two witnesses present. Mr. Pitterson, who works in Mr. Morrison’s office, said he had been briefed, and was prepared to represent the applicant if necessary. He was unable to say why counsel for the respondents and intervenor had not been notified of the adjournment request.

5In light of the prejudice to the parties, and the Tribunal’s mandate to proceed expeditiously, I denied the adjournment. Mr. Pitterson seemed able to represent the interests of the applicant throughout the hearing, and I am satisfied that the applicant was not prejudiced by this last minute change in representation.

6In addition to the request for adjournment, I had to rule on the intervention request by the applicant’s union, the abbreviated name of which is Teamsters Local 647 (“Local 647”). All of the parties consented to the intervention. In addition, it was apparent that the role of the union representatives was central on the issue of the release. Accordingly, I granted Local 647 intervenor status, with the right to call evidence, cross-examine and make argument concerning the respondents’ early dismissal request.

7In total, five witnesses testified concerning the events that surrounded the signing of the release: the applicant, Ross Moore (Distribution Manager of the Queensway Distribution Center), Ed Pypker (the then Director, Labour Relations-Ontario for Weston), Pat Iellimo (Union Steward) and Gerry Cadeau (President, Local 647).

FACTS

8The applicant was employed as a shipper at Weston’s Queensway Distribution Center. He injured his shoulder on the job in October 2008, and was placed on modified duties for a period of time. In February 2009, the company advised him that those modified duties were no longer available at which point he went off on loss of earnings benefits through the WSIB.

The Termination Meetings

9On March 13, 2009, there was a meeting attended by the applicant, and representatives of Weston, Local 647 and the WSIB to discuss a return to work strategy. The respondent witnesses testified that their suspicions were aroused at that meeting when the applicant seemed to be using his arm in a manner that appeared to them to be inconsistent with his restrictions and his assertion that he could not work.

10Around this time, they also heard rumours that the applicant was doing work for one of their independent distributors. The company arranged to have video surveillance of the applicant in late March 2009. Subsequent to that surveillance, the respondents arranged to have a meeting with the applicant and his union steward on April 2, 2009.

11The union steward, Pat Iellimo, testified that he and the applicant had a phone conversation the night before the meeting, during which the applicant told him that he had heard from the independent distributor that Weston was making inquiries. The applicant acknowledged doing external work, but only in a supervisory capacity. Mr. Iellimo testified that he knew someone who had been caught working in similar circumstances, and that he told the applicant that this individual had been required to pay his WSIB benefits back.

12At the April 2, 2009 meeting, the company officials asked the applicant if he had been working, and at first he denied it. They then showed him still pictures from the video surveillance, showing him lifting trays and at that point, he acknowledged that he had been doing work.

13At this point, the union steward testified that the applicant broke down, saying that his grandfather had just passed away, his mother was sick and he was the sole support for his family. He appeared to be really concerned about the loss of his job. The union steward testified that he asked for time to speak with the applicant alone, but this was refused because the company said it wanted to finish its investigation.

14The company advised that they would let the applicant and the union know their decision the next day, but they had not completed the investigation.

15The applicant testified that he recalled only one meeting, and denied that there had been this initial “investigation” meeting. However, the two company witnesses and the union steward all testified that there were two meetings. Notes from this investigation meeting were produced, and I find that two meetings took place and that the purpose of the first meeting was to get the applicant’s position on record, not to mete out discipline.

16The applicant and Mr. Cadeau, Local 647’s president, spoke by telephone the evening of April 2, 2008, after Mr. Cadeau learned that the company had scheduled a discipline meeting for the next day. Mr. Cadeau advised the applicant that he thought the company may want to terminate his employment at the meeting.

17The April 3, 2009 meeting was attended by the applicant, two company officials (Mr. Pypker and Mr. Moore) and several union officials, including Mr. Iellimo, who had been present at the meeting the day before, and Mr. Cadeau. At the meeting, the company representatives handed the applicant a letter advising him that he was being terminated as result of what they characterized as his “ongoing fraud and dishonesty concerning [his] WSIB claim.”

18The union officials asked to meet with the applicant alone, and the company representatives left the room so that they could talk. The applicant testified that the company refused to allow him to meet with his union representatives privately, but this version of events is denied by the four other witnesses, and I find that the applicant is confusing the investigation meeting held the previous day with this meeting.

19When they met privately, Mr. Cadeau, the president of Local 647 suggested to the applicant that he could ask the company if it would be willing to convert the termination into a resignation, which would make it easier for the applicant to find another job. He testified that the applicant readily agreed to this suggested course of action.

20There is a point of contention between the applicant and his union about whether the possibility of a grievance was raised. Mr. Cadeau said that he discussed it with the applicant, but indicated that he did not believe his chances of success were good. He also advised the applicant that a grievance could take one year or more to conclude, during which time the applicant would have no income.

21Mr. Cadeau testified that he is not reluctant to take matters to grievance and would have taken the applicant’s case to arbitration had he not agreed to settle it on the terms discussed that day. The company representatives said that Local 647 is the most active in terms of taking matters to grievance of the various bargaining units they deal with.

22The applicant testified that a grievance of his termination was not raised with him as a possible outcome. Rather the choice appeared to be either accepting the termination or agreeing to the resignation option. At this point, the applicant had been a member of this particular bargaining unit for over six years and he certainly would have been aware that he had the right to grieve a termination. Moreover, in light of the applicant’s faulty memory with respect to some of the other key issues, I cannot rely on this particular testimony.

23Once the applicant indicated an interest in the resignation option, Mr. Cadeau then called Ed Pypker, the Director of Labour Relations, and indicated that he wished to speak to him about a proposed resolution. It is not clear when this took place, but at some point in the negotiations between Mr. Pypker and Mr. Cadeau, it was suggested that the company note on the applicant’s Record of Employment (“ROE”) that he was being laid off for shortage of work, which would allow the applicant to apply for Employment Insurance benefits right away.

24Except for the applicant, the people present at the meeting testified that Mr. Pypker said he would need some time to consider this proposal, and again, the applicant and the union officials were left alone while the company officials sought instructions.

25Approximately 10-15 minutes later the company returned to say that they would agree to the conversion of the termination into a resignation, provide the applicant with a neutral letter of reference and note on his ROE that he was being laid off due to a shortage of work. In exchange, the company required the applicant to sign a release.

26The company officials went away for a third time to prepare the necessary documents, leaving the applicant alone with his union representatives for approximately 15-20 minutes. The union officials testified that the applicant did not express any regret about the offer, or suggest that he did not wish to go through with the deal.

27Indeed, the four witnesses testified that once the documents were prepared, the applicant seemed quite eager to sign the documents immediately. They noted that, although its quite common for someone to ask for time to review documents with a family member, he did not ask for any additional time. They also testified that, in contrast with his demeanour the day before at the investigation meeting, the applicant seemed quite relaxed.

28The applicant took the position that the reason he agreed to the deal proposed by the union was that he believed that the company was going to report him to the police for “fraud.” Although the company officials used the term “fraud” they were not suggesting that he had committed a fraud as that term is used in the criminal context. They denied ever telling the applicant that it was their intention to report him to the police, although they said that it was their obligation to report this behaviour to the WSIB and they probably told the applicant of their intentions in that regard.

29The applicant did not put this allegation to the four witnesses in cross-examination and I find that no such threat was made to the applicant. In hearing the word “fraud” he may have mistakenly assumed that the word was being used in its criminal context.

WSIB Findings

30Weston did report the applicant’s behaviour to the WSIB, which conducted an investigation. In the report on this investigation, dated July 7, 2009, the WSIB notes that the applicant advised the Case Manager that Weston had told him that “the WSIB would pursue fraud charges against him” for collecting WSIB benefits while working elsewhere. He also told the Case Manager that he was advised that if he voluntarily resigned, that Weston would not submit the video surveillance evidence to the WSIB. Finally, the applicant advised the Case Manager that Weston had “threatened” him with legal action, but said that if he resigned, they would not take any further action.

31The Case Manager concluded that the applicant only submitted the letter of resignation “under duress and under threat of legal action.” He further concluded that that the applicant’s work with the independent distributor was within his limitations, and that he, therefore, did not commit fraud on the WSIB. As a result, the Case Manager determined that Weston was in breach of its re-employment obligations by forcing the applicant to resign his position.

32The respondents state that Weston has appealed this decision, but that no decision on the appeal has been rendered.

DECISION

33Section 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.

34The first issue one must consider is whether the release on its face prohibited the applicant from making a claim under the Code. In this case, the language of the release is unambiguous:

I ALSO ACKNOWLEDGE that I have not been subjected to any form of discrimination or harassment and hereby represent and warrant that I have not filed any complaint and undertake not to file any complaint under the Ontario Human Rights Code.

35Given 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 not to 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.

Fraudulent Misrepresentation

36Although the applicant did not specifically suggest that the agreement should be set aside on this basis, he does allege that he agreed to resign his position and sign the release on the basis of the company’s assertion that it had uncovered information about him that the WSIB would regard as fraudulent. However, when the WSIB did its investigation, it concluded that the applicant had done nothing wrong. It is implicit in this version of the facts that the applicant is arguing that he entered into the deal under false pretences.

37However, in order for the Tribunal to conclude that the respondents had fraudulently misrepresented the situation, it would have to find that that the respondents put facts to the applicant which they knew to be untrue with the intent to deceive. See: 1018429 Ontario Inc. v. Fea Investments Ltd., 1999 CanLII 1741 (ON CA), 179 D.L.R. (4th) 268 at para 51 (C.A.).

38In order for me to determine whether the respondents acted with intent to deceive, it is not necessary or appropriate for me to make a finding about whether the applicant was working within or beyond his restrictions, and whether his termination was justified or not. The respondents may be in error about the conclusion they drew from their investigation (as apparently the WSIB found at first instance), but still not deceitful.

39The applicant did not testify that he believed the company had purposely misled him. Indeed, the witnesses for both the company and the union appeared to me to be sincere in their belief that the applicant had misrepresented his limitations to the company. That being the case, I do not find that the respondents induced the applicant to act under false pretences.

Economic Duress

40It 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 “economic duress.” However, entering into an agreement because it will help to alleviate financial difficulties, even where those difficulties are significant, does not necessarily mean that the agreement has been entered into under duress.

41Where “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.

42Black’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.

43“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.

44The 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. 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.

45I have no doubt that the applicant felt extremely stressed by the circumstances he found himself in. However, I do not find that he was subject to illegitimate pressure. I do not find, for example, that the company told him that they would approach the police about laying criminal charges unless he resigned and signed the release, or that it threatened some unspecified “legal action.”

46I also do not accept the applicant’s evidence that he was given no time to consider his options or consult. He was aware that the company may have uncovered evidence of him working for the independent distributor on April 1, 2009, when he had phone conversation with his union steward. He was aware of what this evidence was on April 2, 2009, and had another day to consider his options and consult with his union (or whomever he chose) before being told that the company planned to terminate his employment. Indeed, in his conversation with the president of Local 647 the night before that meeting, he was aware that termination was the likely outcome.

47Even at the meeting itself, there were three periods in which the company left him alone with his union representatives to consider his options. It was at the first of these meetings that the resignation option was raised and accepted by him. He did not express any doubts thereafter, and according to those present, seemed eager to proceed without delay. After signing the documents, he did not express any regret to either the company or his union, and it was not until the WSIB decision that the issue of duress was raised.

48I find that the applicant freely entered into the agreement with Weston and that the release he executed, in which he agrees that he will not file any claims under the Code, is binding. It would therefore be an abuse of this Tribunal’s process to permit the Application to proceed.

49The Application is dismissed.