Munn v. Crocs Canada Inc., 2010 HRTO 494

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Munn

Applicant

-and-

Crocs Canada Inc.

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: March 4, 2010

Citation: 2010 HRTO 494

Indexed as: Munn v. Crocs Canada Inc.

APPEARANCES:

Robert Munn, Applicant ) On His Own Behalf

Crocs Canada Inc., Respondent ) Jordan D. Winch, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that he suffered discrimination in respect of employment on the basis of age.

2The respondent has sought early dismissal of the Application on the basis that the applicant signed a full and final release regarding the subject matter of the Application. It argues that to allow the Application to proceed would constitute an abuse of process. The applicant acknowledges that he signed the release but argues that he was under duress and that he should be permitted to proceed with his Application.

3In an Interim Decision, 2009 HRTO 1420, the Tribunal ordered that a hearing be scheduled to deal with the respondent’s request for early dismissal. The hearing was held only on the preliminary issue on February 2, 2010. I heard evidence from George Cowie, an employee of the respondent, and from the applicant.

THE FACTS

4The applicant was employed by the respondent , Crocs Canada Inc., as a sales representative from 2003 until December 15, 2008, when the applicant was terminated without cause.

5The parties agree that the decision to terminate the applicant’s employment was communicated to him by George Cowie, who was the National Sales Manager for the respondent at the time. Only the two men were present at the meeting, which took place on November 13, 2008.

6Two alternative separation packages were offered to the applicant; one that would see his employment end immediately, the other on December 15, 2008. The parties agree that the applicant opted to consider and ultimately signed the second of the two packages described.

7Although there is disagreement as to some of what was said during the meeting, both witnesses agree that George Cowie suggested that the applicant seek legal advice.

8A copy of the termination letter and separation package, dated November 13, 2008, was provided to me. It indicates that the separation package being offered would be open for the applicant’s acceptance until November 21, 2008.

9The package contains a detailed document entitled “Full and Final Release”, signed by the applicant, witnessed by his lawyer and sent to the respondent by the applicant’s lawyer.

10The release includes the following language:

I further represent that I am aware of my rights under the Ontario Human Rights Code, and confirm that the Releasee has complied with the Ontario Human Rights Code in respect of my employment and/or the termination of such employment.

11Further, the final paragraph confirms that the document is being signed after the releasor has been afforded an opportunity to obtain independent legal advice and that he is signing it “voluntarily and without duress”.

12The applicant gave evidence that when he was told about the termination by George Cowie, he “went blank”. While he acknowledges that he was told to obtain legal advice by Mr. Cowie, he felt he could not think through his decision adequately. He testified that he is upset by the fact that no reason was given for the termination.

13Although his written material had indicated that he felt under duress because he only had 48 hours to consider whether to accept the separation package, the applicant acknowledged in testimony that the letter from the respondent gave him until the 21st of November, which meant that he was given 8 days rather than 2 to consider his options. He also confirmed that he did seek legal advice and that both he and his lawyer then, separately, delivered signed copies of the documents to the respondent.

14Finally, he acknowledged that he has received and retained monetary compensation that amounted to almost a full year of pay, pursuant to the terms of the separation package.

DECISION

15Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides as follows:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

16The applicant does not dispute that he was offered a severance package that contained a release at the time that his termination was being discussed. He does not deny that he sought and obtained independent legal advice prior to accepting the package. Although he has made a general allegation that he was under duress and should not be bound by the terms of the release, the only specific information he gave when provided the opportunity to do so at the hearing was that he was in shock at being told he was losing his job, that he felt he had to accept the package because he and his wife had financial obligations and that he felt he was not treated fairly by the respondent.

17The concerns described by the applicant do not amount to duress.

18To allow this Application to proceed in light of the clear language in the release, signed by the applicant after having received independent legal advice, would, in my view, amount to an abuse of the Tribunal’s process.

19Accordingly, the Application is dismissed.