HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gurpreet Mann
Applicant
-and-
Transcom Worldwide (North America) Inc.
Respondent
DECISION
Adjudicator: Alan G. Smith
Indexed as: Mann v. Transcom Worldwide (North America)
WRITTEN AND ORAL SUBMISSIONS:
Gurpreet Mann, Applicant ) Self-represented
Transcom Worldwide (North America) Inc, ) Anne Ricci, Representative
BACKGROUND
1This is an Application filed on October 15, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code). The respondent filed a Response on March 1, 2011, which included a Request to Dismiss the Application. The respondent argues that since the applicant signed a full and final release with respect to the same issues in dispute it would be an abuse of process for the Tribunal to continue to process the Application and therefore requests the Application be dismissed.
2The Tribunal sought written submissions from the applicant regarding why she believed the Application should not be dismissed. By Case Assessment Direction of March 18, 2011, a conference call was scheduled in order for the parties to make oral submissions pursuant to s. 43(2) of the Code.
3A conference call hearing was held before me on October 22, 2011. Both parties participated and made oral submissions with regard to the Request to Dismiss.
FACTS
4The pivotal facts are not in dispute. The applicant was employed by the respondent from March 1, 2010, as Vice President of Human Resources. The respondent terminated the applicant’s employment on August 19, 2010. The applicant asserted that she was targeted for termination because of her race and colour.
5The respondent’s Request included a copy of the release document executed by the applicant on August 19, 2010. The document in part reads, “I also acknowledge and represent that my rights pursuant to…human rights legislation have not been violated in any manner….I further agree not to commence…any…complaint, demand or other proceeding…against the [respondent] companies…I hereby confirm that I have had the opportunity to obtain independent legal advice with respect to the details of…this Release, and I confirm that I am executing this Release freely and voluntarily”.
ANALYSIS
6The respondent argues that a full and final release was executed by the applicant on the date of termination and, “At the time of the Applicant’s dismissal, Transcom’s Vice President of Human Resources advised the Applicant to have the full and final release reviewed prior to signing the document. The Applicant refused citing that she was a Human Resources professional and she knew her rights”.
7In her “Response to a Request for an Order” the applicant argues that she was told by the respondent’s representative at the termination meeting that, “…if I sign the release form I can leave the company with respect and 3 weeks pay and I don’t sign the papers then I would basically be thrown out of the company site and not get paid”. The applicant goes on to say that she was, “shocked and terrified that I was being terminated….I was put in a difficult situation where I had no choice then to sign the release forms and leave quietly…I was not given a moment to read the forms, nor was I told that I can take these forms home and sign them later, given the termination was a total shock…So in a state of shock and the state of mind I was, under pressure I had no choice then to sign those papers, since I was being threatened by the VP Lesley Ford”. In her oral submissions the applicant reiterated that she was “shocked and embarrassed” when notified of the termination.
8The terms of the Release clearly encompass an application made under the Code. However, accepting that the release expressly encompassed legal action related to human rights does not end the enquiry. In Bielman v. Casino Niagara, 2009 HRTO 123, 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.
9Thus, while the existence of a full and final release is not a statutory bar to continuing an application, 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, see Martinez v. Siemans Canada, 2010 HRTO 1027.
10The Tribunal has also 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, Kailani v. Securitas Canada, 2009 HRTO 1183, Martel v. North Shore Community Support Services, 2010 HRTO 957, and Dias v. Baycrest Centre for Geriatric Care, 2011 HRTO 1342. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
11Fundamentally, the applicant seems to be arguing that she was under some form of emotional and economic duress when she agreed to execute the release.
12Black’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.
13“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.
14The 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 paras. 8-9:
There is no doubt that 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.
15Clearly, where 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.
16There is no basis upon which to conclude that the applicant did not truly consent to the agreement, which is what a finding of duress would entail. The applicant confirmed in her oral submissions that she considered herself a “human resources professional”, and hence would have understood her basic legal rights on being terminated. This would have included an awareness that she had the right to consult with a lawyer or other professional before agreeing to a settlement and that a delay in signing a release would not effect her legal entitlements.
17In sum there are no facts alleged here which could lead me to conclude that the applicant had no “realistic alternative” but to submit to the agreement. Although I do not doubt that the applicant was upset at the time she entered into the agreement, I am not persuaded that the applicant had no free choice such that the agreement was entered into under duress. Based on the facts before me, continuing the Application in the face of a valid full and final release would therefore constitute an abuse of the Tribunal’s process.
ORDER
18The Application is dismissed.
Dated at Toronto this 15th day of November, 2011.
“signed by”
Alan G. Smith
Member