HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alain Martel
Applicant
-and-
North Shore Community Support Services Inc. and Anke Lanksy-Johnson
Respondents
DECISION
Adjudicator: Sherry Liang
Indexed as: Martel v. North Shore Community Support Services
Appearances
Alain Martel, Applicant ) On his own behalf
North Shore Community Support ) Jill Van Vugt, Counsel
Services Inc., Respondent )
1This is an Application filed on July 30, 2009, 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 discrimination in employment on the grounds of sex and sexual solicitation. The Application describes two incidents in August 2008 and subsequent interactions with the applicant’s supervisor up to the date of the termination of his employment in July 2009.
2The respondents requested early dismissal of the Application, relying on the terms of a Full and Final Release dated July 20, 2009, a copy of which was enclosed with the Response.
3The Tribunal held a telephone conference call hearing to receive the submissions of the parties on the request for early dismissal. Based on the submissions of the parties and having regard to the material in the Application, this Application is dismissed.
4It should be noted that the conference call hearing in this matter was scheduled for 1:30 p.m. on April 21, 2010. Notice of the conference call was sent to the parties on March 26. The Notice was sent to the applicant by regular mail, to the address he provided. There was no indication of any problem with delivery of the Notice to the applicant. On 1:30 p.m., the applicant was not present at the conference call. After waiting for approximately 20 minutes, and confirming that the Notice had been sent to the applicant, the conference call hearing proceeding in the applicant’s absence. After hearing the submissions of the parties, I issued an oral ruling dismissing the Application.
5At approximately 2:30, the Tribunal re-convened the conference call after being contacted by counsel for the respondent, who indicated that the applicant had contacted her wishing to make submissions.
6The applicant indicated that he was late in joining the conference call because of some uncertainty about the dial-in information. In any event, with the consent of the respondent, the Tribunal granted a re-hearing of the matter, in effect revoking the earlier oral decision to dismiss the Application.
7The following Decision is based on the re-hearing of the issues, at which both parties were present and had the opportunity to make submissions.
8According to the Application, the applicant was hired by the respondent in May 2008 as a Mental Health Worker. He states that in August 2008, his supervisor touched him in a sexual manner, on two occasions. Following this, throughout the fall, the applicant states that he was harassed in the workplace, which he believes was a result of his rejection of sexual advances. He states that his supervisor raised concerns about his performance and absenteeism, resulting in his being informed on July 20, 2009 that his employment was terminated. He states that he was paid his accrued vacation and given two weeks pay in lieu of notice. He states that “under duress”, he signed a release to obtain an additional 6 weeks of wages and cash in lieu of 2 months benefits.
9The Full and Final Release signed by the applicant states that he releases and forever discharges his employer, its directors, officers, employees, insurers, heirs and assigns from “any and all actions, causes of actions, complaints, claims and demands, for damages, loss or injury, howsoever arising, which heretofore may have been or may hereafter be sustained by me as a consequence of my employment”.
10In his Reply, in addressing the Release, the applicant states again that he signed it “under duress”. He states that he lives in a town where employment is not easy to come by and the money offered was essential to him. In his oral submissions, the applicant reiterates that he felt under economic pressure when he signed the release. He states that before being dismissed, he had been on sick leave, receiving only 55% of his income. He referred to the employment prospects in his community as poor. The applicant stated that, although he has been working part time with a school board since his dismissal, at the end of the school year, the hardship will really hit.
DECISION
11The terms of the Release clearly encompass a claim made under the Code, such as this Application. 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: Dube v. Rockhaven Recovery, 2009 HRTO 53; Sinnett v. Orlick Industries, 2009 HRTO 916 and Kailani v. Securitas Canada, 2009 HRTO 1183.
12It 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.
13Where “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.
14Black’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.
15“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.
16The Ontario Court of Appeal described the elements of economic duress in a very 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.
17In this case, I am not satisfied that the circumstances outlined by the applicant amount to the type of economic duress that would render the Release unenforceable. The applicant believed that he was experiencing discrimination under the Code and that his employment was being wrongfully terminated. He could have chosen to only receive his statutory entitlements, and pursue his claim to the Tribunal or the courts. He chose to accept the enhanced payment and sign the Release.
18I cannot conclude that the applicant did not truly consent to the terms of the Release, which is what a finding of duress would entail. There are no facts alleged here which could lead me to conclude that the applicant had no “realistic alternative” but to agree to those terms. Although I do not doubt that the applicant was under financial pressure at the time he signed the Release, I am not persuaded that the applicant had no free choice such that it was signed under “economic duress”.
19Having regard to the terms of the Release, it would be an abuse of the Tribunal’s process to permit the Application to proceed.
20The Application is dismissed.
Dated at Toronto this 3rd day of May, 2010.
“Signed By”
Sherry Liang
Vice-chair