Delmonte Samuel Amendola v. Marriott Hotels of Canada Ltd., 2012 HRTO 2292

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Delmonte Samuel Amendola Applicant

-and-

Marriott Hotels of Canada Ltd. Respondent

DECISION

Adjudicator: Alan G. Smith

Date: December 6, 2012

Citation: 2012 HRTO 2292

Indexed as: Amendola v. Marriott Hotels of Canada Ltd.

APPEARANCES

Delmonte Samuel Amendola, Applicant Self-represented

Marriott Hotels of Canada Ltd., Respondent Jonathan Dye, Counsel

BACKGROUND

1The applicant filed an Application with the Tribunal on December 12, 2011, pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code”), alleging discrimination in employment, including being dismissed by the employer respondent on April 28, 2011.

2In its Response of February 7, 2012, the respondent requested that the Application be dismissed on the basis that the applicant had entered into Minutes of Settlement and a full and final Release (the “Release”) on August 24, 2011, and therefore it would be an abuse of process for the Application to continue. On March 23, 2012, the applicant provided written submissions in opposition to the respondent’s request.

3On March 29, 2012, the Tribunal determined that it was appropriate to schedule a telephone conference call hearing with the parties to address the preliminary issue raised in the respondent’s Response.

4Pursuant to s. 43(2) of the Code a preliminary hearing by teleconference was held before me on July 11, 2012. The purpose of the preliminary hearing was to determine whether the Application should be dismissed, in whole or in part, on the basis that the applicant had signed a Release.

5The applicant and respondent made oral submissions during the summary hearing. The parties’ written submissions were also considered by me.

ARGUMENT

6The respondent points to the Release signed by the applicant on August 24, 2011. The Release contains the following language:

...This release constitutes a full and final settlement of any existing, planned, or possible complaint or complaints against the Company under the Human Rights Code, arising out of or in respect of said employment, and the consideration noted above includes a separate sum as compensation for resolving any such complaint….

7In his written submissions, as well as in the course of the hearing, the applicant objected to the dismissal of the Application because he alleged that the employer had unjustifiably delayed issuing him a Record of Employment (“R.O.E.”) for five months following the termination. The applicant stated in his response to the respondent’s request:

I am disappointed that Marriott won’t be held accountable for bullying me & for not giving me the R.O.E. So it forced me take their low offer that I’m not happy with of 48,000.

8In his oral submissions the applicant confirmed that he had legal counsel throughout the process of negotiating a settlement with the respondent, including at the time of signing the Release. However, he stated he had, “bad vibes” about his lawyer and that his lawyer had, “let him down”. Nevertheless, he admitted that he understood the terms of the settlement but that he was, “in a bad financial situation so had to sign”.

analysis

9Section 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. 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. See, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 Barton v. Rouge Valley Health System, 2010 HRTO 2126 and Sleiman v. The Participation House Project (Durham Region), 2012 HRTO 345.

10While 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.

11In this case, the wording of the Release specifically mentions complaints under the “Human Rights Code”. The language of the release clearly obliges the applicant to abandon his Tribunal Application.

12I also find that the applicant’s arguments with regard to the delay in issuing the R.O.E. are irrelevant to the issue of whether the Release should be enforced.

13I must next consider whether there is some reason for not requiring the applicant to be bound by what would otherwise appear to be a binding promise to not file an Application with the Tribunal. One of the reasons discussed in the Tribunal’s jurisprudence includes duress (both economic and psychological), which appears to be the argument provided by the applicant in this case. See, Monteiro v. Inspec-Sol, 2010 HRTO 2281 and Sleiman, above.

14The applicant appears to argue that he signed the Minutes of Settlement and Release under psychological duress (from his lawyer) and economic duress. Where “duress” is put forward as the basis for vitiating a settlement agreement, the party claiming duress is really stating that he or she entered the agreement against his or her own free will. See Monteiro, above. As the Tribunal explained in Barton, above, a party alleging duress has the onus of establishing that the circumstances surrounding the conclusion of the agreement amount to duress. The legal threshold is an exacting one, which recognizes the strong public interest in the principle of finality.

15The Ontario Court of Appeal described the elements of legal duress as follows in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157:

… [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.

16The Tribunal noted in Martel v. North Shore Community Support Services, 2010 HRTO 957:

It 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.

17I do not accept the applicant’s bald assertions that he was under undue psychological pressure from his lawyer as being sufficient to amount to duress. The applicant has not pointed to any evidence which would support this assertion. Even accepting the applicant’s assertion that he had “bad vibes” and was “let down” by his lawyer, I cannot accept that the applicant was under any pressure from counsel that would amount to a “coercion of the will” so as to substantiate legal duress in the signing of the Release.

18I am also not satisfied that the circumstances outlined by the applicant amount to the type of economic duress that would render the Release unenforceable. There are no facts alleged here which could lead me to conclude that the applicant had no “realistic alternative” but to agree to the terms of settlement. 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”, see Martel, above.

19In summary, the applicant has not established that he was under duress, in the legal sense, at the time he executed that document.

20Ordinarily an adult who signs a contract is held to the terms of that contract. I find that the applicant has failed to provide any grounds to justify me deviating from that general rule. Therefore, to allow this Application to proceed in light of the clear language of the Release prohibiting such a claim would amount to an abuse of the Tribunal’s process.

ORDER

21The Application is dismissed.