Walker v. Dr. Michael Gossack Professional Corporation, 2011 HRTO 1982

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dianne Walker

Applicant

-and-

Dr. Michael Gossack Professional Corporation, Michael Gossack and Lynne O’Connor

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: November 2, 2011

Citation: 2011 HRTO 1982

Indexed as: Walker v. Dr. Michael Gossack Professional Corporation

Appearances

Dianne Walker, Applicant ) Self-Represented

Dr. Michael Gossack Professional ) Tracy Bergeron Lucha, Counsel Corporation, Michael Gossack ) and Anna Danaj, Student-at-Law

and Lynne O’Connor, Respondents )

Christien Crosswhite, Witness ) J. Paul R. Howard, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination on the basis of disability in the context of employment.

2The applicant was employed by the corporate respondent. On November 24, 2009, her employment was terminated. The applicant states that her disability was a factor in the respondents’ decision to terminate her employment. She also alleges that she was bullied and harassed by the individual respondent, Lynne O’Connor.

3The respondents filed a Response in which they seek the early dismissal of the Application on the basis that the applicant has signed a full and final release with respect to the same subject-matter as the Application. The applicant acknowledges that she signed a settlement agreement as well as a full and final release. However, she argues that these documents should not prevent her from continuing with her Application because:

a. she did not read or appreciate the significance of the release and settlement agreement before she signed them;

b. the morning after signing the documents, she advised her counsel not to forward them to the respondents; and

c. she never signed a stand alone release agreement although the respondents requested one and initially made the signature of a stand alone release agreement a condition to releasing settlement funds to her.

4The Application is dismissed. I reject the applicant’s evidence that she did not read or appreciate the significance of the settlement agreement and release when she signed them on January 14, 2010. I find that, although the applicant did direct her counsel not to send the signed documents to the respondents, she did not do so until approximately a week after executing these documents and well after they had been provided to the respondent. Finally, in light of the settlement agreement and release the applicant did sign, I find that it would be an abuse of process to allow the Application to proceed. The respondents are entitled to rely on the settlement agreement and release signed by the applicant. The fact that the applicant subsequently refused to sign a further release agreement does not absolve her from the terms of the documents she did sign.

SUMMARY OF PROCEEDINGS

5Pursuant to an earlier Interim Decision, 2010 HRTO 1444, the Tribunal held a telephone conference hearing on April 20, 2011, to deal the request for early dismissal on the basis of the release.

6At the telephone conference hearing, it became apparent that there was a factual dispute and that, in order to determine the Request, it would be necessary for the Tribunal to hear evidence regarding the circumstances surrounding the signing of the settlement agreement and release, their transmission, and any direction the applicant provided to counsel regarding the transmission of the settlement agreement and release.

7Following the telephone conference hearing, the Tribunal issued an Interim Decision, 2011 HRTO 798, directing that an in-person hearing be scheduled for the purpose of determining the Request.

8The hearing was conducted on September 16, 2011. At the outset of the hearing, the parties agreed that the Tribunal would take the lead in questioning the witnesses. The Tribunal heard evidence from: the applicant; the applicant’s former counsel, Colin Bondy; and Christien Crosswhite, Mr. Bondy’s former legal assistant. Mr. Bondy and Ms. Crosswhite testified at the hearing in response to summonses.

9In responding to the Request, the applicant makes arguments that put the instructions she gave to her counsel and the information she received from him directly at issue. At the outset of the hearing, the applicant waived privilege over the communications she had with Mr. Bondy.

10At the hearing, the Tribunal inadvertently failed to administer an affirmation to Ms. Crosswhite. All other witnesses were affirmed before they gave evidence. After Ms. Crosswhite had testified, the applicant pointed out that Ms. Crosswhite had not made an affirmation before giving her evidence. Ms. Crosswhite was directed to re-attend the hearing. An oath was administered and Ms. Crosswhite confirmed the truth of the evidence she had given. The Tribunal asked the parties whether they had any concerns with the process that had been adopted and they indicated that they did not. I note that section 15 of the Statutory Powers Procedure Act, R.S.O. 1990 c. S.22, provides that the Tribunal may admit evidence whether or not it was given under oath. In the circumstances, I am satisfied that the evidence of Ms. Crosswhite ought to be admitted.

11At the conclusion of the parties’ evidence, there was insufficient time for the parties to make closing arguments. In any event, the applicant requested an opportunity to make her closing submissions in writing. The Tribunal invited the applicant to file written closing submissions. She did so October 24, 2011. I have reviewed the applicant’s closing submissions. In the circumstances, it is not necessary for the respondents to make any further submissions.

THE ISSUES

12The Request raises the following issues:

a. Is the applicant’s alleged failure to read or understand the settlement agreement and release a basis for setting them aside in the circumstances?;

b. Are the applicant’s alleged instructions to counsel not to transmit the signed settlement agreement and release a basis for setting them aside in the circumstances?; and

c. Is the fact that the applicant did not sign a second, stand alone release a basis for allowing the Application to proceed?

FINDINGS OF FACT

13The facts regarding issue (c) are relatively straightforward and not contentious. On January 14, 2010, the applicant executed a settlement agreement and a release concerning, among other things, the termination of her employment.

14The respondents’ counsel asked that the applicant sign a second, stand alone release that was substantially identical to the release signed by the applicant on January 14, 2010. The respondents initially took the position that payment of settlement funds was contingent upon the applicant signing the second release.

15The applicant did not sign a stand alone release agreement. Notwithstanding this , in May 2010, the respondents’ counsel delivered two cheques to the applicant in accordance with the signed settlement agreement. The applicant has not cashed those cheques.

16Issues (a) and (b) are more contentious and require me to resolve issues of credibility. The respondents dispute that the applicant did not read or understand the agreements she signed. They also dispute that she instructed her counsel not to transmit those documents to the respondents, as alleged.

17As there are a number of key areas where the witnesses’ evidence differs, the determination of the issues will turn in large part upon my assessment of the credibility of witnesses. In assessing credibility, I have applied the traditional test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A.):

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.... Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken…

18In addition to these factors, I have also considered those set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, namely the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence; and observations as to the manner in which the witnesses gave their evidence.

19Applying the principles set out above, I find the evidence of Ms. Crosswhite and Mr. Bondy to be credible. Their evidence was internally consistent and generally consistent between them. While their evidence contained some minor inconsistencies, particularly regarding the timing of events, these are to be expected after the passage of time. These two witnesses’ evidence was given in a straightforward manner and was consistent with the documentary evidence before the Tribunal. Both of these witnesses are third parties to the dispute giving rise to this Application and neither appeared to have an interest in the outcome of the proceedings.

20Applying the same principles, I have no hesitation in concluding that the applicant was not a credible witness before the Tribunal. Where it differs from that applicant, I prefer the evidence of Mr. Bondy and Ms. Crosswhite.

21As I explain in greater detail below, the applicant’s evidence was internally inconsistent, inconsistent with the documentary evidence, inconsistent with the evidence of the other witnesses, and not reasonable taking all of the circumstances into account.

22The applicant testified that she did not read or understand the release or settlement agreement before she signed them. When asked what she believed she was signing, she testified that Mr. Bondy had told her to come to his office to sign “routine paperwork” and that he insisted she do so before he would meet with her.

23This evidence was contradicted by Mr. Bondy, who produced copies of emails he sent to the applicant on January 12 and January 14, 2010. Each of those emails attached a version of a settlement agreement and release. As I discuss in further detail, below, on January 12, 2010, Mr. Bondy states (and the applicant acknowledges) that he had a detailed conversation with the applicant about the proposed terms of settlement. Further, in his January 14, 2010 email, Mr. Bondy quite clearly invites the applicant to attend at his offices to sign the attached documents during the course of that day. He also invites her to contact him if she has any questions about the documents. In light of the January 12, 2010 conversation between the applicant and Mr. Bondy and in light of the January 14, 2010 email to the applicant, I reject the applicant’s contention that when she attended at Mr. Bondy’s office on January 14, 2010, she believed that she was signing routine paperwork.

24The applicant testified that she had not read or understood the settlement agreement or the release before she signed them. Again, this is contradicted by Mr. Bondy’s testimony and by the documentary evidence. It is also inconsistent with the applicant’s own evidence.

25Mr. Bondy testified that he specifically discussed the terms of a proposed settlement with the applicant in relation to his email of January 12, 2010. The applicant acknowledged that this conversation took place. Mr. Bondy says he explained to the applicant the nature of the settlement and release documents, but advised her that it might be possible to negotiate better settlement terms. Following this discussion with the applicant and based on her instructions to him, Mr. Bondy states that he had further communication with counsel for the respondents. Ultimately, the respondents’ counsel provided Mr. Bondy with a second settlement agreement and release which, from the applicant’s perspective, contained improved terms of settlement.

26Mr. Bondy forwarded these documents in an email to the applicant on January 14, 2010. The documents attached to the January 14 are substantially similar to those Mr. Bondy and the applicant discussed on or about January 12. The principal differences are that the January 14 documents include better financial terms of settlement and the language of the settlement agreement is amended slightly in respect of the applicant’s claim before the Ministry of Labour. The release agreement was identical to that attached to the January 12 email.

27In cross-examination, the applicant acknowledged that she may have received a number of settlement documents from her counsel. She testified that the terms of the proposed agreement changed each time and that this was confusing to her. However, the applicant acknowledged that some parts of the January 12, 2010 documents were amended (“struck”) at her request. Throughout her testimony, the applicant insisted that she believed she was signing “routine documents” and that negotiations were ongoing, even after she signed the documents on January 14, 2010.

28While it may be that the applicant did not carefully read each document she received from her counsel, I cannot accept her evidence that she did not understand the nature of the settlement agreement or release she signed on January 14, 2010. The applicant acknowledged that she had some discussions with Mr. Bondy following his email of January 12 regarding the settlement agreement. She acknowledged that the documents were amended slightly following those discussions. The January 14 documents are similar in substance to the agreements she discussed with Mr. Bondy. I do not accept that she did not understand their nature.

29The applicant testified that, at approximately 9:45 a.m. on January 15, 2010, she spoke to Ms. Crosswhite and directed her not to transmit to the respondents the settlement agreement and release that she had signed on January 14. As I have mentioned, the applicant’s evidence is that she did not read the settlement agreement and release until after she signed them. She testified that when she did read them later on the evening of January 14, she became quite distressed and had difficulty sleeping that evening.

30Even by her own evidence, by at least the evening of January 14, the applicant understood the nature of the nature of the documents she had signed and that their transmission to the respondents’ counsel would have serious implications for her. Yet, her evidence was that she took no steps to contact Mr. Bondy or Ms. Crosswhite that evening or even first thing the following morning. She testified that she took some time on the morning of the 15^th to compose herself and that, just as she was about to call Mr. Bondy, Ms. Crosswhite telephoned her. She stated that, at this time, Ms. Crosswhite asked her to sign a further stand alone release. The applicant testified that, during this telephone conversation, she asked Ms. Crosswhite whether the January 14 documents had been forwarded to the respondent. She testified that Ms. Crosswhite answered that they had not yet been delivered to the respondent. The applicant states that she then directed her not to deliver them. .

31The applicant’s evidence on this issue is inconsistent with the evidence of Mr. Bondy and Ms. Crosswhite, both of whom testified that while the applicant did contact them to direct that the documents not be transmitted, she did not do so until approximately one week after January 14, 2010. Ms. Crosswhite testified that she hand-delivered the documents to the respondents’ counsel on the evening of January 14^th. She stated that, when the applicant called approximately one week later, and asked that they not be sent to the respondent, Ms. Crosswhite referred the applicant to Mr. Bondy.

32Mr. Bondy testified that, on January 22, 2010, Ms. Crosswhite advised him that the applicant did not want settlement documents transmitted to the respondents. He stated that he spoke to the applicant on January 26 and advised her that the documents had already been sent to the respondents. He followed this telephone conversation up with a letter dated January 29, 2010, in which he advised the applicant that she was bound by the documents she had signed. Mr. Bondy stated that he exchanged emails with the applicant between February 4 and February 8 regarding the stand alone release agreement. On February 10, the applicant advised that she would not sign the stand alone release and, on February 11, she terminated Mr. Bondy’s retainer.

33I prefer the evidence of Mr. Bondy and Ms. Crosswhite over that of the applicant. In all of the circumstances, the applicant’s version of events is not consistent with the preponderance of probabilities that a practical and informed person would recognize as reasonable. By the applicant’s own evidence, she took no steps to confirm her oral instructions to Ms. Crosswhite regarding the transmission of the documents. Although she states that she was distressed at having signed the documents and although she understood that their transmission had important implications, the applicant did not send a written confirmation of her instructions, nor did she attempt to speak to Mr. Bondy directly. The applicant’s evidence was that after her January 15, 2010 telephone conversation with Ms. Crosswhite, she took no steps to contact Mr. Bondy until January 28, 2010, when she emailed him with questions about, among other things, health insurance coverage.

34This version of the facts is surprising given the applicant’s evidence regarding the extent of her distress upon learning what she had signed. It is also inconsistent with how the applicant behaved on other occasions. For example, when she says she did not receive a satisfactory response from Mr. Bondy to her January 28, 2010 email, she contacted counsel for the respondents directly. She took no such steps regarding the transmission of the settlement documents.

35In her written submissions, the applicant states that Mr. Bondy called her on January 18. She argues that this supports her version of events as he would have had no reason for calling her except to discuss her request not to transmit documents to the respondent. I do not accept this.

36The evidence before me does not establish that Mr. Bondy called the applicant on January 18. Indeed, in the applicant’s own testimony, she states that she did not speak to Mr. Bondy or take any steps to contact him between January 15 and January 28. In any event, even if a conversation did take place on January 18, it does not necessarily follow that it concerned the transmission of documents. Given the outstanding issue of the stand alone release, the alleged conversation might well have related to the second release requested by the respondent.

Summary of findings of fact

37I have reached the following conclusions of fact:

• On January 14, 2010, the applicant executed a settlement agreement and a release concerning, among other things, the termination of her employment. She declined to sign a second, stand alone release agreement;

• I reject the applicant’s contention that she did not read or understand the documents she signed on January 14, 2010;

• I accept that Ms. Crosswhite delivered the executed settlement agreement and release to counsel for the respondent on January 14, 2010;

• I find that, on or about January 22, 2010, the applicant instructed counsel not to transmit the documents she signed on January 14. By this time, the respondents’ counsel had had the signed release and settlement for approximately one week.

ANALYSIS

a. Is the applicant’s alleged failure to read or understand the settlement agreement and release a basis for setting them aside in the circumstances?

38As I have indicated, I reject the applicant’s evidence that she did not read or understand the settlement agreement or release before she signed it. I find that she had read, understood and discussed the nature of the settlement agreement and release, generally, with her counsel. She also attended at her counsel’s office on January 14, 2010, because he specifically asked her to come in to sign the settlement agreement and the release.

39Moreover, as the Tribunal explained in Rivard v. George Brown College, 2009 HRTO 2212, a party to a legal agreement cannot enter into a release without taking the time and effort to understand it and then rely upon her own lack of attention as the basis upon which to resile the agreement. See also Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1865, at para. 67.

b. Are the applicant’s alleged instructions to counsel not to transmit the signed settlement agreement and release a basis for setting them aside in the circumstances?

40As I have indicated, I find that the applicant did not provide any such instructions until approximately one week after she had signed the settlement agreement and release. I am satisfied that this is not a case where documents were transmitted in error or contrary to the applicant’s instructions. Rather, this is a case where the applicant changed her mind about the settlement several days after she had executed documents. As the Tribunal explained in Perricone, supra:

When two parties contract to settle legal matters between them, the principle of finality demands that the contract be given effect and prevents parties from litigating settled matters, unless there are compelling reasons to set the contract aside altogether.

There are no compelling reasons to set aside the release and settlement agreement in this case. The respondent is entitled to rely upon them.

c. Is the fact that the applicant did not sign a second, stand alone release a basis for allowing the Application to proceed?

41On January 14, 2010, the applicant executed two documents: a settlement agreement and a release. The release she signed includes the following language:

The Releasor hereby specifically covenants, represents and warrants to the Releasee that he/she has no further claims against the Releasee for or arising out of his/her employment, including, without limiting the generality of the foregoing, any claims for pay, notice of termination, pay in lieu of such notice, severance pay, termination pay, damages for misrepresentation, defamation and/or any other tort claim, expenses, bonus, commission, overtime pay, interest, benefits and/or vacation pay and specifically including any claim under the (...) Human Rights Code, R.S.O. 1990, c. H., as amended, (...) or any other similar legislation. In the event that the Releasor should make hereafter any claim or demand or commence or threaten to commence any action or proceeding or make any claim against the Releasee or anyone, for or by reason of any cause, matter or thing, relating to his/her employment, or the cessation or termination of his/her employment, this document may be raised as an estoppel and complete bar to any such claim, demand, action, proceeding or complaint.

42The applicant submitted that, although she signed this release, she did not sign the further release requested by the respondents’ counsel. She argues that, as a result, no settlement was ever finalized and she ought not to be bound by the agreements she did sign.

43I reject this argument. The language of the release signed by the applicant relates to the subject-matter of the Application and it encompasses claims before the Tribunal. In signing the release, the applicant agreed to specific terms which the respondents are entitled to rely upon. It is not necessary for me to determine what, if anything, would have been achieved by signing a second release. However, the fact that she applicant decided not to sign a second release does not absolve her from the terms of the document she did sign.

CONCLUSION

44I am satisfied that the applicant signed a valid and binding settlement agreement and release, which specifically contemplates human rights claims and relates to the termination of the applicant’s employment. This is the very subject-matter of the Application.

45The Tribunal has repeatedly held that filing a human rights application after signing a full and final release in respect of the same subject matter as the Application may constitute an abuse of process and, where that is the case, such applications should be dismissed. See, for example, Perricone, supra.

46For the reasons set out above, in the circumstances of this case, there are no compelling reasons to set aside the terms of the release. The applicant signed a release that bars her from pursuing the Application. It would be an abuse of process to allow this Application to proceed.

47Accordingly, the Application is dismissed.