Michael Dieter v. Transcontinental Printing Inc. / RBW Graphics, 2012 HRTO 2171

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Dieter

Applicant

-and-

Transcontinental Printing Inc. / RBW Graphics

Respondent

DECISION

Adjudicator: Douglas Sanderson Date: November 20, 2012 Citation: 2012 HRTO 2171 Indexed as: Dieter v. Transcontinental Printing Inc.

APPEARANCES

Michael Dieter, Applicant Self-represented

Transcontinental Printing Inc. / RBW Graphics, Respondent Mark Stone, Counsel

Introduction

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”), alleging discrimination with respect to employment because of disability.

2In the Application, the applicant alleges that the respondent terminated his employment because of his disability, which he identified as a shoulder injury. The respondent filed a Response in which it requested early dismissal of the Application because the applicant signed a full and final release regarding the termination of his employment. The respondent submitted that it terminated the applicant's employment because of performance and behaviour issues. However, the respondent did not assert cause and offered the applicant a severance package equivalent to approximately 20 months of combined notice and severance. The applicant accepted the offer and the respondent paid the funds owed to the applicant under their agreement. The respondent also submitted that the WSIB proceedings dealing with the applicant’s injury appropriately dealt with the substance of the Application, pursuant to section 45.1 of the Code.

3By letter dated April 12, 2012, the Tribunal scheduled a preliminary hearing by conference call to determine whether the Application should be dismissed because the substance of the Application has been dealt with in another proceeding or dismissed as an abuse of process because the applicant has signed a full and final release with respect to the same subject matter. The hearing was held on July 12, 2012.

Submissions

4As will be seen below, I have found the Application must be dismissed as an abuse of process; therefore, I have addressed only the submissions related to that issue as I find it unnecessary to deal with the s. 45.1 issue.

5The applicant explained that he had had difficulty retaining counsel to represent him in his disputes with the respondent. The applicant stated that a lawyer with whom he consulted advised him that he had "no case". Accordingly, the applicant felt he had no choice but to accept the offer presented by the respondent, although he did so against his better judgment. The applicant acknowledged that he signed the release and that he understood it. He submitted that signing a release was a financial cushion that allowed him to keep his personal business operating.

6The respondent submitted that the applicant accepted a generous severance package and executed a release in favour of the respondent. The release indicated that he had no outstanding claims against the respondent, including any claims under the Code. The respondent submitted that the applicant had the opportunity to seek legal advice and was advised that he had no case. The applicant therefore accepted the package.

Analysis and Decision

7The Code does not explicitly bar Applications where an applicant has executed a release in favour of the respondents. See Bielman v. Casino Niagara, 2009 HRTO 123. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, however, provides that the Tribunal may make such orders or give such direction in proceedings before it as it considers proper to prevent abuse of its processes. The Tribunal has found on a number of occasions that filing a human rights Application after executing a full and final release can amount to an abuse of process and dismissed the Applications in question. See for example Shams v. Genivar Inc., 2012 HRTO 163, and Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655.

8First, it is necessary to consider whether language used in the release encompassed claims under the Code. The first paragraph of the release contained comprehensive language releasing the respondent from:

…all manner of actions, causes of action, claims, demands, or complaints, which the Releasor had, now has or hereinafter may have, against the Releasee, including without limiting the generality of the foregoing any actions, causes of action, claims, demands or complaints based upon, arising out of or in any way related to, the Releasor’s employment or the cessation of that employment with the Releasee.

The second paragraph contains the following statement:

The Releasor hereby specifically convenants, represents and warrants to the Releasee that he has no further claim against the Releasee for or arising out of his employment with the Releasee or the termination of such employment … and specifically including any claim under … the Ontario Human Rights Code, R.S.O., c. H.19…

In my view, the release language contained in the first paragraph included claims under the Code and, in any event, the applicant agreed in the second paragraph that he had no Code claims arising out of his employment or the termination of his employment. I find therefore that the release covered claims under the Code.

9In Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058, 35 C.H.R.R. 39 (ON S.C.), the Court set out factors for determining whether a release should be set aside. Pritchard was decided under section 34 of the old Code, which invoked bad faith rather than abuse of process, and concerned access to the since repealed investigative procedure of the Ontario Human Rights Commission rather than the right to an oral hearing before the Tribunal. However, the Tribunal has found that the Pritchard factors can be useful in determining whether it would be an abuse of process to proceed with a hearing on the merits: Douse v. Hallmark Canada, 2009 HRTO 1254. The Pritchard factors look to (1) whether the party fully understood the significance of the release; (2) whether the party received sufficient and fair consideration for signing the release; (3) evidence of economic pressure; and (4) evidence of psychological or emotional pressure amounting to duress.

10The Ontario Court of Appeal described the elements of duress in a recent case, Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157, at para. 9:

[N]ot 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.

11I do not find that any of the Pritchard factors, or any other factors that might warrant overriding the language of the release, have been established in this case.

12The applicant acknowledged that he understood the release. He submitted that he accepted the severance package the respondent offered against his better judgment, but gave no indication that he was subject to duress or that the consideration paid was insufficient. The applicant stated that he made a financial decision to accept the respondent’s offer and he was no doubt concerned about his finances after losing his job. However, there is no indication that the respondent placed any pressure on the applicant, financial or otherwise, to execute the release. The applicant also had an opportunity to discuss his circumstances with counsel prior to accepting the respondent’s offer. The applicant did, of course, accept the offer and the respondent has paid him the funds to which he was entitled. Consequently, I find that there is no basis for vitiating the release. To allow the Application to proceed in light of the clear language of the release prohibiting claims under the Code would amount to an abuse of process.

Order

13The Application is dismissed