Walkinshaw v. Complex Services Inc., 2010 HRTO 2318

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marilyn Walkinshaw

Applicant

-and-

Complex Services Inc.

Respondent

INTERIM decision

Adjudicator: Lorne Slotnick

Date: November 22, 2010

Citation: 2010 HRTO 2318

Indexed as: Walkinshaw v. Complex Services

APPEARANCES

Marilyn Walkinshaw, Applicant ) Chris Bittle and Leanne Standryk, ) Counsel

Complex Services Inc., Respondent ) Lauri Reesor, Counsel

1This Interim Decision deals with a request by the respondent that the Application be dismissed as an abuse of process because the applicant signed a full and final release.

2The Application was filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint is dated August 25, 2005, and claims discrimination in employment on the basis of disability.

3The respondent provides staffing for Casino Niagara and Fallsview Casino. The applicant was an employee of the respondent for just over 13 months until her termination on July 8, 2005. I heard evidence on the respondent’s request to dismiss on July 22, 2010, and the parties argued the matter by way of written submissions, which were completed on September 24, 2010.

4The applicant has a diagnosis of bipolar affective disorder with psychosis, and there is no dispute that she is a person with a disability. She was first employed with the respondent in May, 2004. Late in 2004, as a result of a reorganization, her job was changed substantially and she was given the title of engineering dispatcher. At around the same time, she began treatment for her disability with Dr. Michael Porter, at St. Catharines psychiatrist. It is agreed that the applicant had difficulty performing her new duties, although the causes of that difficulty may be in dispute.

5The applicant was off work for about two months in early 2005, and then for about a week in early June, 2005. Each time, Dr. Porter wrote a note to the respondent that did not specify the reasons for the absence. The respondent has a third-party insurance company administer medical leaves, and Dr. Porter filled out the insurer’s forms, indicating the applicant’s illness and her medications. This information would not customarily be disclosed by the insurer to the employer for privacy reasons, and there is no evidence that the respondent was told directly any specific information about why the applicant was off work. The applicant did not make any request for accommodation upon her return to work from either absence, or at any other time before her termination.

6The applicant’s difficulties with work continued, and the respondent decided to end her employment. The applicant was called to a meeting on July 8, 2005. Present were her manager, Jim Hyk, Frank Costabile, a human resources consultant, and Brian Mosher, the Casinos’ executive director of facilities. The applicant was given a letter that stated the termination was for reasons of “fit and suitability.” The letter said the respondent would be giving her $1,018.14 pursuant to her entitlements under the Employment Standards Act, 2000, and was offering an additional $1,478.13 conditional upon signing a release. The letter continued, “We ask that you give this offer careful consideration, obtain whatever advice you deem appropriate, and advise us of your position by July 15, 2005.”

7Despite the extra week she was given to consider the matter, the applicant signed the release immediately. This document, among other standard terms, releases the respondent from

“all claims arising out of or in any way related to the termination or cessation of such employment, including … claims arising under or in connection with … the Ontario Human Rights Code, R.S.O. 1990 c. H.19, as amended, or claims for mental or physical disability or sickness or for insurance benefits and including all loss or damage not now known or anticipated but which may arise in the future, and all effects and consequences thereof.”

8In addition to the payment of $1,478.13, the release specified that the applicant would be able to participate for four weeks in the respondent’s extended health benefits plan, excluding short and long-term disability benefits, and life insurance.

9Three days later, the applicant saw Dr. Porter and advised him she had been fired. He immediately wrote to Mr. Mosher (with a copy to Mr. Costabile) asking the respondent to reinstate the applicant and put her on sick leave. His letter, dated July 11, states as follows:

I am a psychiatrist who has been treating Marilyn Walkinshaw since January 12, 2005. At that time and for a period of time prior to that date the patient had the first onset of a psychiatric disorder called Bipolar Affective Disorder. The essence of this illness is that individuals have periods of profound depression and periods of mania or hypo mania. It normally takes a number of months to affectively (sic) control this illness with medications so that the chances of a recurrence are significantly decreased.

I understand that you terminated Marilyn on July 8, 2005. Clearly any disability she had with respect to her employment has been the result of the illness which first presented itself in January. Numerous individuals have Bipolar Affective Disorder and lead full productive lives. There is no reason to believe that Marilyn will have a poor prognosis.

I am asking you to reinstate Marilyn Walkinshaw and place her on disability for medical illness or in a job that is less stressful.

You have fired an employee who was not able to perform her job because of a medical illness about which your company has previously been informed.

10The respondent did not reply to this letter from Dr. Porter.

Parties’ Positions

11The respondent relies on the release signed by the applicant, and the long line of case law in the courts and in this Tribunal barring litigation where this type of release has been signed.

12The applicant argues that in these circumstances the release should be set aside, because, she says, the respondent knew of her disability and terminated her at a meeting during which she signed a release under duress. The applicant also argues there is doubt about whether she had the capacity to enter into a contract at the time. Thus, it would not be an abuse of the Tribunal’s process to let the application proceed to a hearing.

13The respondent replies that it did not know of the applicant’s disability, that there was no duress or coercion involved in the meeting where the applicant signed the release, and that there is no basis for finding that the applicant lacked capacity to sign the document.

The Respondent’s Knowledge

14As set out above, Dr. Porter’s letter asserts that the respondent was aware of the applicant’s diagnosis of bipolar affective disorder. However, as was clear from his evidence at the hearing, he was basing this statement on the misconception that the forms he filled out for the third-party insurer were seen by the respondent’s managers. While these forms, which detailed the diagnosis, may have been seen by the respondent’s occupational health department, the three men who conducted the termination meeting, including the applicant’s manager, each denied ever seeing any documents with the diagnosis, and given that there is no evidence at all that they did, I accept that they were never advised officially of the applicant’s disability.

15Nevertheless, the applicant asks me to find that the respondent knew of her disability based on two other documents: first, one of the two brief notes from Dr. Porter, dated June 6, 2005, advising the respondent that the applicant would be off work, has the word Psychiatry in brackets after the doctor’s name; and second, an e-mail message in February, 2005 from an employee who was training the applicant in her new duties. The message, to a supervisor, raised concerns about the applicant’s ability to perform the job, including procedures for alarms. The message states,

Her response to our last alarm, well, frankly alarmed me…she said that her instinct was to turn around and run out the door, and then she told me that she gets panic attacks that she is medicated for as well as taking meds for depression.

16This evidence raises the question of who among the respondent’s managers and supervisors knew about the applicant’s disability, or who ought to have known or ought to have sought more information. I will have more comment on this issue below; however, I have concluded that, on the basis of this evidence alone, I cannot find that any of the three representatives of the respondent who conducted the termination meeting knew about the applicant’s disability.

17Dealing first with the word Psychiatry on one of Dr. Porter’s notes, (the note for the earlier absence was on a different letterhead without the word Psychiatry), I have no evidence that anyone noticed the word. Even assuming that managers at the respondent noticed the note was from a psychiatrist, this is insufficient to impute knowledge of a disability by the respondent when no further information was provided in the note and no request for accommodation was made.

18Furthermore, while the email message mentioned depression and panic attacks, and was sent to one supervisor, I have not heard evidence from either the sender or the recipient about who might have discussed its contents, or the nature of those discussions. However, I do have evidence from each of the three men who conducted the termination meeting regarding the message. Each of them denied any knowledge of the email message, and each of them denied any knowledge of a disability.

19Clearly, numerous members of management knew that the applicant had been absent twice for medical reasons in the months preceding her termination. However, while there is no evidence yet on who among management may have known about or discussed the applicant’s disability, I do find that the three management representatives who conducted the termination meeting were unaware of the specifics at the time and could only, at best, speculate about the applicant’s medical issues.

Duress

20I heard evidence from all four people who attended the termination meeting: the applicant, Mr. Hyk, Mr. Mosher and Mr. Costabile. It is worth noting that none of the three managers at the meeting is still employed by the respondent, and thus they are less likely to feel pressure to tailor their evidence to the respondent’s view of the case. All three testified that the meeting was calm, that it took about 15 minutes, that the applicant said little, that she was told more than once that she should take away the proposed package and obtain advice before signing, but that she insisted on signing right then and there.

21Mr. Hyk, the engineering manager, said he was there as an observer and said nothing. Mr. Mosher, the executive director of facilities, said he told the applicant that she had the option of going to court if she did not sign the release. Mr. Costabile, the human resources consultant, said he drafted the letter and release, and reviewed them in detail with the applicant at the meeting. He said the meeting was conducted in accordance with well established practice, with no one raising their voice or using threatening language, and with no one standing behind the applicant. Nothing out of the ordinary happened, he said, except that the applicant insisted on signing the release at the meeting, which he described as extremely unusual.

22In her evidence, the applicant did not disagree substantially with the respondent’s witnesses about the conduct of the meeting. She agreed that the documents were explained to her, but said she did not understand them. The applicant agreed that she told the managers she wanted to sign the papers right then, and that she did not indicate that she did not understand the contents. She said she felt anxious during the meeting and was having difficulty concentrating, focusing and understanding, and that she felt as if she was going to vomit. While she agreed no one threatened her or yelled at her, she said she felt intimidated by the whole meeting.

23Based on the above facts, I cannot make a finding that duress was involved in the meeting that ended with the applicant signing the release. This Tribunal has recognized that an employee will almost always feel under pressure when making a decision on whether to accept or reject a proposed termination package. However, the test for duress is high, and the Tribunal has required evidence of improper pressure or coercion to make a finding of duress. (See, for example Kailani v. Securitas Canada, [2009] HRTO 1183). Such evidence is simply not present here. There is little question that the applicant was facing severe financial difficulty upon losing her job, but that in itself is not sufficient to constitute duress.

Capacity

24Counsel for the applicant argues that she executed the release at a time when she was suffering from severe symptoms of depression and psychosis, and was incapable of understanding the significance of the document she was signing.

25Dr. Porter testified that when the applicant has depressive episodes with periods of psychosis, she has difficulty in grasping reality and would have thoughts and ideas disconnected from actual events. He said that in the absence of a mental status examination conducted by a psychiatrist on the day she signed the release, he would not be able to conclude that the applicant was competent to provide informed consent. He said that in his opinion, considering the applicant’s psychiatric history, it was unlikely that she was capable of providing informed consent.

26On cross-examination, he agreed that a person with a mental illness is not necessarily incapable of entering into a contract. In the case of bipolar disorder, he said, a typical patient has no symptoms about half the time, and is in a depressive, manic or mixed state the other half. Given all the circumstances, he said -- including her illness and the humiliation of losing her job -- the applicant did not fully understand or appreciate what she was doing when she signed the release or what the alternatives were.

27Dr. Porter acknowledged that his clinical note for June 22, 2005 – just two weeks before the termination – says the applicant was doing “much better,” although he said that this is still in the context of a bipolar patient. A similar picture of improvement emerges in the note of June 29, which quotes the applicant as saying she is “doing better” and “not as sad.” The note says the applicant was spontaneously smiling and was planning a vacation in Scotland in September. A week later, on July 6 – two days before the termination – the applicant came to her appointment with a friend, who told Dr. Porter that the Applicant was not doing as well as she herself seemed to think. Dr. Porter thought she might be excessively sedated, and ordered a decrease in the dosage of one of her medications.

28On her next visit, July 11, the applicant advised Dr. Porter she had been fired and he wrote the letter to the respondent set out above. His clinical note for that date notes that the applicant was very distressed about the firing, but says her status was “stable but increased symptoms of depression with decreased sleep.” Dr. Porter’s note also says he suggested the applicant see a lawyer.

29When Dr. Porter filled out the return-to-work assessment in April 2005, at the end of the applicant’s two-month absence, he wrote “none” when asked for the patient’s restrictions. The form asked whether there were any cognitive limitations, or difficulties with problem solving or decision making, but those were left blank. He said in his evidence that the applicant was eager to get back to work, and that he feels obliged to give patients a say in what they want to do with their lives. He said she made a reasonable request to go back to work full-time, and although it was not his first choice, “it’s her life.” He agreed, however, that she was fit to return to work and was working at the time of her termination.

30Asked why his letter to the respondent of July 11 did not raise the issue of capacity, Dr. Porter responded that “it’s assumed competence is an issue with bipolar … there’s a cognitive deficit as part of this disorder.” Even if the employer did not know about her disability and did not act in an intimidating manner at the termination meeting, “their intention might be one thing and her experience might be another,” he said.

31I have considered Dr. Porter’s evidence and that of the applicant, and I have concluded that even though a cognitive deficit is inherent in the applicant’s disability, a lack of legal capacity to understand and sign the release at the time she did has not been established on the balance of probabilities in this case. I find it significant that the applicant was working at the time of her termination, and had been for the previous month. It is also significant in my view that Dr. Porter’s clinical notes in the weeks immediately prior to the termination show an improved situation, and neither his first note after the termination nor his letter to the respondent give any indication that he had concerns about her capacity to enter into an agreement.

32There was nothing in the evidence that would have given the three representatives of the respondent who attended the meeting any reason to question her legal capacity to sign the release. As the respondent notes, case law suggests that a contract is binding on a person of unsound mind even if that person did not understand its meaning, unless the other party had knowledge, actual or constructive, of the incapacity. See Bjelakovic v. Accenture Global Services, [2008] O.J. NO. 2660 (On. S.C.). Here, there had been no request for accommodation, and as outlined above, the three men conducting the termination meeting were not privy to any knowledge or details of the applicant’s disability. Despite her disability, I find on the balance of probabilities that the applicant had a general understanding of what was happening at the meeting and thus grasped that she was signing documents that signified acceptance of a severance package. The applicant has not established that she did not have the legal capacity to sign those documents.

Other issues

33While I have not found that the respondent used duress or that the applicant was suffering from a legal incapacity to sign the release, there may be other considerations that apply – beyond the principles of contract law – in a human rights case involving disability.

34There are three aspects of this case that have influenced my decision on whether this Application can be called an abuse of process at this preliminary stage.

35The first revolves around Dr. Porter’s letter to the respondent, set out above, and dated three days after the termination. Dr. Porter acted immediately after seeing the applicant and advised the respondent of her disability, requested reinstatement and asked that she be placed on sick leave or in a less stressful job. This is a request to accommodate a disability.

36I find it particularly significant that this letter, in all likelihood, would have been received within the one-week period that the respondent had been prepared to give the applicant to decide on signing the release and accepting its severance offer. Yet the respondent ignored the letter, even though it now had been told precisely what the disability was and that accommodation was being requested.

37Another significant fact about Dr. Porter’s letter of July 11 arises from the respondent’s evidence that it does not conduct its termination meetings on Fridays so that employees will have an opportunity to obtain independent advice right away. The respondent argued that applicant’s failure to see Dr. Porter until three days later indicates that her claims are now being exaggerated and that she was possibly being egged on to take legal action by her psychiatrist.

38There was no evidence at the hearing on what day of the week the termination meeting was held, but I have taken notice that July 8, 2005, was, in fact, a Friday. The applicant went to see Dr. Porter on the Monday, even though the evidence indicates that she was not scheduled to see him until Tuesday.

39Dr. Porter sent his letter immediately, and, as noted above, there was no response. Mr. Mosher, to whom the letter was addressed – and who had only three weeks prior to the firing recommended reassigning the applicant to a more suitable position, a recommendation that was not followed – said he probably forwarded the letter to the employer’s legal department. There is no evidence at this point that either he or Mr. Costabile, to whom the letter was copied, or anyone else from the respondent, reconsidered their decision to terminate in light of the new information.

40In these circumstances, the respondent should not be allowed to benefit from its decision to ignore the letter clearly requesting accommodation – a letter that was sent well within the week-long period that the respondent had been prepared to give the applicant to decide on the termination package.

41My second concern relates to who among the respondent’s managers and supervisors knew or ought to have known about the applicant’s disability and whether managers were obliged to ask more questions once her co-worker reported that the applicant said she was subject to panic attacks and was on medication for that and for depression. As noted above, I heard from neither the sender nor the recipient of the email message reporting this information, so I do not have adequate evidence at this point to reach any conclusions on the respondent’s obligations once applicant had given her trainer an indication that a disability might explain some of her performance issues. It may be that the managers who conducted the termination meeting ought to have been apprised of a possible disability, and thus might have been obliged to conduct the meeting differently. In my view, there is a compelling argument that the parties ought to have an opportunity to address this issue.

42The third concern relates to the content of the release itself. As already noted, the release included an extension of the applicant’s benefits for four weeks, with the exclusion of short-term and long-term disability plans. These disability plans are insured policies for which the respondent pays the premiums. As an employee with more than one year but less than three years of service, the applicant had an entitlement under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (the Act), to two weeks’ notice or pay in lieu thereof. However, the Act also requires the employer to maintain benefits during the notice period, by virtue of Sections 60 and 61:

60. (1) During a notice period under section 57 or 58, the employer,

(c) shall continue to make whatever benefit plan contributions would be required to be made in order to maintain the employee’s benefits under the plan until the end of the notice period.

61. (1) An employer may terminate the employment of an employee without notice or with less notice than is required under section 57 or 58 if the employer,

(a) pays to the employee termination pay in a lump sum equal to the amount the employee would have been entitled to receive under section 60 had notice been given in accordance with that section; and

(b) continues to make whatever benefit plan contributions would be required to be made in order to maintain the benefits to which the employee would have been entitled had he or she continued to be employed during the period of notice that he or she would otherwise have been entitled to receive.

43The respondent denies it failed to meet its statutory obligations, citing section 5(2) of the Act, which provides for an exception to the general rule that contracting out of an employment standard is void. Section 5 states as follows:

5.(1) Subject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.

5(2) If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.

44The respondent argues that extending part of the applicant’s benefits for four weeks provides a greater benefit than extending all the benefits for only the required two weeks. I disagree for two reasons. First, I do not agree that section 5(2) applies to a release, which is not an “employment contract” at all. Second, even if a release were considered an employment contract under the Act, it is far from clear that giving the applicant two extra weeks of dental and other health coverage is a greater benefit than access to a sick leave plan. This is particularly true in the situation of the applicant, who, at least according to Dr. Porter, could have been placed immediately on disability benefits but was denied access to them during her notice period when they were needed.

Decision

45Given the concerns outlined above, I turn to the question of whether this Application ought to be considered an abuse of process. The Statutory Powers Procedure Act, R.S.O. 1990, c.S.23, as amended in section 23 gives the Tribunal power to make orders to prevent abuses of its processes, and the Tribunal has used this power to dismiss applications where the applicant has signed a release.

46However, the Tribunal has noted that the Code does not explicitly bar an application simply because a full and final release has been signed. See Bielman v. Casino Niagara/Complex Services, 2009 HRTO 123. The parties each referred to Pritchard v. Ontario Human Rights Commission 1999 CanLII 15058 (ON SCDC), [1999] O.J. No. 2061 (Div. Ct.), a case in which the court ordered the Human Rights Commission to investigate a complaint even though a release had been signed. However, that case focused on the question of bad faith under language that is no longer in the Code. See Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655.

47The Supreme Court of Canada discussed the purpose of the doctrine of abuse of process in the case of Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63. While the context in that case – relitigation of the facts surrounding a criminal conviction – differed markedly from the case here, the Court had the following general comments, which I find relevant and applicable to this Tribunal (at paragraph 43):

In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts. Whether it serves to disentitle the Crown from proceeding because of undue delays (see Blencoe, supra), or whether it prevents a civil party from using the courts for an improper purpose (see Hunter, supra, and Demeter, supra), the focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice. In a case such as the present one, it is that concern that compels a bar against relitigation, more than any sense of unfairness to a party being called twice to put its case forward, for example. When that is understood, the parameters of the doctrine become easier to define, and the exercise of discretion is better anchored in principle.

Taking this approach, the key question, in my view, is whether, in the particular circumstances of this case, it would constitute an abuse of this Tribunal’s process to allow the applicant to proceed with this Application.

48In nearly all cases where a settlement has been reached or a release had been signed, this Tribunal has ruled that it would constitute an abuse of the Tribunal’s process to proceed with a hearing. I certainly do not disagree with this approach. However, I have concluded that this is one of the rare and exceptional cases where the Tribunal cannot at this preliminary stage declare that proceeding would be an abuse of process despite the signing of a release. The employer was made aware almost immediately after the release was signed that the applicant had a disability and that the disability may have given rise to a requirement for accommodation and may have influenced the applicant’s actions in accepting the termination package without seeking advice. The employer chose not to respond at all to this information, and should not benefit at this stage from its decision to ignore the letter from the applicant’s psychiatrist. Furthermore, there is an argument the release itself may be of no effect because of the provisions of the Employment Standards Act, 2000, set out above. Finally, as noted above, there is not enough evidence yet on how much the supervisory staff at the respondent knew about the disability or ought to have known, whether inquiries ought to have been made, and whether the participants in the termination meeting should have been advised that there was a disability.

49At this preliminary stage there are too many important unanswered questions to declare that this Application is an abuse of the Tribunal’s process. The Application deserves to be heard on its merits.

50Therefore, the respondent’s preliminary motion is dismissed and the matter will proceed to a hearing.