Walker v. Dr. Michael Gossack Professional Corporation, 2011 HRTO 798

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

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: April 21, 2011

Citation: 2011 HRTO 798

Indexed as: Walker v. Dr. Michael Gossack Professional

APPEARANCES

Dianne Walker, Applicant ) Self-represented

Dr. Michael Gossack Professional Corporation, )

Michael Gossack and Lynne O’Connor, )

Respondents ) ) Tracy Bergeron, 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.

2In essence, 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.

4Pursuant 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. At the hearing, the Tribunal heard oral submissions from the applicant and from counsel for the respondents.

5At the telephone conference hearing, the applicant described the circumstances surrounding the signing of the release. She explained that she was represented by counsel following the termination of her employment. Following negotiations, the parties agreed upon settlement terms. The settlement provided that the corporate respondent would pay settlement funds in three cheques, two of which would be sent to the applicant and one to her then-counsel.

6The terms of settlement also required the applicant to execute a full and final release, which she ultimately did on January 14, 2010, the same date she executed the minutes of settlement.

7The Release 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.

8The applicant submitted that she signed the Release without reading it and without understanding its contents. She acknowledged, however, that she understood that the employer’s offer included a requirement to sign a release.

9The respondents argue that, if the applicant did, in fact, chose to sign the Release without reading it, she is responsible for that choice. 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.

10The applicant stated that she signed the release late in the afternoon of January 14, 2010 and that she understood that she must sign the document in order to continue settlement discussions with the respondents. The applicant states that although she did not read the Release before signing it, she read the Release in the evening of January 14, 2010. The following morning, she contacted her then-counsel’s office and advised that the Release had been signed in error and ought not to be sent to the corporate respondent.

11The signed Release was ultimately sent to the corporate respondent sometime between January 14 and January 19, 2010. The respondents state that the applicant’s then-counsel never advised them of any alleged error and never indicated that the applicant wished to retract the Release. Instead, they relied upon the Release and the executed minutes of settlement and issued three cheques as required in the minutes of settlement.

12The applicant’s then-counsel cashed the cheque sent to him. It appears that the applicant did not cash either of the two cheques sent to her.

CONCLUSION AND NEXT STEPS

13At this early stage in the Application, there is insufficient evidence to conclude that it would constitute an abuse of the Tribunal’s process to allow this Application to proceed to be heard on the merits.

14The applicant’s contention that she did not read the Release is not an appropriate basis to void it: see Rivard, supra. However, as I indicated to the parties, because the circumstances surrounding the transmission of the Release to the respondents are both key to the issue and in dispute, I cannot determine the abuse of process issue without further evidence.

15The evidence required to deal with the release issue as a preliminary objection is discreet and different from the evidence that would be required to decide the case on the merits. Accordingly, in my view, the most fair, just and expeditious manner of proceeding is to schedule a half-day in-person hearing in Windsor. At the hearing, the parties will have an opportunity to present evidence and make further oral submissions regarding the respondents’ Request for the early dismissal of the Application on the basis of a release.

16The following directions will apply to the hearing:

a. the applicant’s witnesses will testify first;

b. at least 28 days before the hearing, the applicant will provide to the Tribunal and the respondents a list of witnesses and a summary of their expected evidence;

c. at least 21 days before the hearing, the respondents will provide to the Tribunal and the applicant a list of witnesses and a summary of their expected evidence; and

d. at least 14 days before the date of the hearing, the parties must exchange and file with the Tribunal any document upon which they intend to rely at the hearing, including case law.

17I am not seized of this matter.