Oxley v. Gus Brown Pontiac Buick GMC, 2010 HRTO 33

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Oxley

Applicant

-and-

Gus Brown Pontiac Buick GMC Ltd., Denis Keane and William Guest

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: January 8, 2010

Citation: 2010 HRTO 33

Indexed as: Oxley v. Gus Brown Pontiac Buick GMC

APPEARANCES BY

Tammy Oxley, Applicant ) Self-represented

Gus Brown Pontiac Buick GMC Ltd., ) Denis Keane and William Guest, ) William Gale, Counsel Respondents )

BACKGROUND

1This is an Application filed April 30, 2009, under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The original complaint filed with the Ontario Human Rights Commission on August 24, 2006 alleged discrimination and harassment on the basis of sex and disability and reprisal. Her employment was terminated on February 27, 2006.

2The respondents filed a Response alleging that the applicant’s termination of employment was part of a restructuring, and was not motivated by discriminatory considerations. Additionally, the respondents requested early dismissal of the Application on the basis that the applicant signed a full and final release as part of a termination compensation package negotiated between the parties at the time of termination.

3A hearing was held on January 4, 2010 to hear the parties’ evidence and submissions on whether the Application should be dismissed in light of the release.

4There was little dispute between the parties about the key facts giving rise to this Application. The applicant was employed as a business manager for the corporate respondent since July 2002. She alleges that during her employment she was treated in a demeaning and sexually inappropriate manner. She alleges that she told senior management about the situation.

5In July 2004, she started a disability leave related to her pregnancy. She returned to work following parental leave in August 2005. In October 2005, she went on disability leave resulting from a non-work related injury. While on medical leave, the corporate respondent sent her a letter dated February 27, 2006 terminating her employment and offering her a severance package. She was asked to indicate whether she accepted the package by signing an enclosed Release by March 3, 2006, failing which, they would terminate her in any event with four weeks pay as required under the Employment Standards Act.

6The parties met on February 27, 2006 and the applicant asked the corporate respondent to extend her benefit coverage for an additional three months. They agreed and the applicant signed the Release.

7The release signed by the applicant specifically released her rights under the Code.

8The applicant asserts that she did not understand the significance of the release for two reasons. First, she states that she called the Employment Standards Office to seek advice and was advised that the employer was entitled to terminate her employment while she was on disability leave. Accepting that she received that advice, there is nothing in this fact that explains why the applicant agreed to sign a release releasing her rights under the Code if she believed that the reason for the termination was because of her disability.

9Further, the applicant was aware of the alleged poisoned work environment at the time she signed the release releasing her right to make a claim about that under the Code.

10Second, the applicant asserts that she was under considerable stress as a result of an ongoing family dispute.

11She testified that she experienced a domestic assault in October 2005 which resulted in her taking disability leave since October 2005. She continued to have serious domestic problems which involved the Family Court and Children’s Aid. As a result of these proceedings, she asserts that she should not be bound by the Release.

POSITION OF THE PARTIES

12The respondents’ position is that the applicant voluntarily entered into a full and final settlement of any and all claims arising from the termination of her employment, which explicitly referenced human rights and by implication the Code.

13Respondents’ counsel argued that the applicant was under no pressure or obligation to accept the terms of settlement, was given ample time to ponder its terms, and accepted the deal willingly and with full knowledge and understanding. Furthermore, the respondents submitted that the terms of severance were favourable to the applicant, far exceeded what she would have been entitled to under the Employment Standards Act, and therefore represented fair consideration for the signing of a full release.

14In Better Beef Ltd. v. MacLean (2006), 2006 CanLII 17930 (ON SCDC), 80 O.R. (3d) 689 (ON S.C.D.C.) at paras. 46-48, the Divisional Court held 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 employer from all claims, it should not be easily disturbed.

15The applicant took the position that she had no choice but to sign the release, given her circumstances at the time and the power imbalance between herself and the respondents. She was in no position to reject the settlement offer and fight for her rights in light of her life circumstances at the time.

ANALYSIS AND DECISION

16It is important to stress that this case is not yet being decided on the merits. I have heard no evidence whatsoever as to the allegations of discrimination made by the applicant against her former employer, the corporate respondent. 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 respondents to defend against the allegations of discrimination.

17The release clearly encompassed claims brought under the Code.

18Accepting that the release expressly encompassed legal action related to human rights does not end the inquiry. In Bielman, the Tribunal stated:

The Code does not explicitly bar applications such as this where a release has been signed by the applicant. In each case where a respondent requests early dismissal of an application, the Tribunal must decide whether, in the circumstances, it would constitute an abuse of the Tribunal’s process to allow the application to proceed to a hearing on the merits. An important consideration in that analysis is the respondent’s reasonable expectation that a release of this kind will bring finality to any employment related dispute they may have with a former employee.

19Thus, while the existence of a full and final release is not a bar, there are many reasons to uphold agreements reached between freely contracting parties. Failure to uphold such agreements, and to hold parties to their commitments, can undermine the integrity of negotiated settlements and hinder the timely and informal resolution of disputes.

20The Tribunal must render its decisions in the light of principles of law set out in its own jurisprudence as well as that of the courts. The case of Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ON S.C.), addressed the circumstances to be considered in determining whether a release should be set aside. I recognize that that Pritchard was decided under section 34 of the old Code, which invoked bad faith rather than abuse of process, and concerned access to the since repealed investigative procedure of the Ontario Human Rights Commission rather than the right to an oral hearing before the Tribunal. However, the Pritchard factors can be useful in determining whether it would be an abuse of process to proceed with a hearing on the merits: Douse v. Hallmark Canada, 2009 HRTO 1254. The Pritchard factors look to (1) whether the party fully understood the significance of the release; (2) whether she received sufficient and fair consideration for signing the release; (3) evidence of economic pressure; and (4) evidence of psychological or emotional pressure amounting to duress.

21I do not find that any of the Pritchard factors, or indeed any of the possible factors courts and the Tribunal have used to determine the circumstances that warrant overriding a full release, have been established in this case.

22I have no doubt the applicant was torn about what to do, and experienced various pressures and motivations which influenced her decision to sign the release. However, I find that she did exercise an informed and reasoned choice.

23There is no indication that the applicant was under severe financial pressure or at imminent risk of adverse health consequences, as was the case in Bielman. No evidence was adduced to support a claim of financial hardship or health risk. Even if I were to accept that the applicant experienced some degree of financial insecurity as a result of the corporate respondent’s decision to terminate her employment during her disability leave, the case law is clear that economic pressure alone is not sufficient to set aside a release: Sinnett v. Orlick Industries, 2009 HRTO 916 at para. 24.

24In addition to there being no indication of severe financial pressure or serious health issues comparable to the case in Bielman, there was also no assertion of misrepresentation in the negotiations that led to the signing of the release. When the applicant received notice of her termination, she was already fully aware of the potential human rights issue. She further negotiated the terms of the severance package, succeeding in extending her medical benefits.

25The applicant has not persuaded me that there is any good reason to set aside the release and proceed with this Application.

26The Application is accordingly dismissed.